Proscribing Far Right Terrorism: Canada's new terrorist listing of two far right extremist groups
4 July 2019
By Leah West and Michael Nesbitt
Last week Canada added five new groups to Canada’s terrorist entities list, but the big news was that two of these groups were far right terrorist groups. Why is this a big deal? Well, they mark the first and only two far right groups on the Canadian government’s list of sixty terrorist entities (less than 5%). While this in itself is newsworthy and, frankly, overdue, the fact that the groups Blood and Honour and Combat 18 are the first right-wing/neo-Nazi groups ever to be listed is an important development for Canadian national security law. This post doesn’t tackle the political ramifications or “why now” questions that arise out of this listing. Those issues are addressed by Intrepid editors Jessica Davis, Amarnath Amarasingam and Leah West in a piece for Just Security (link to come). Instead, this post focuses on the government’s process for listing an entity and some of the legal implications going forward.
Section 83.05 of the Criminal Code, gives the Governor in Council the authority to create a list on which they place an “entity” if, on the recommendation of the Minister of Public Safety, they are satisfied that there are reasonable grounds to believe that the entity has (a) knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or (b) is knowingly acting on behalf of, at the direction of or in association with terrorist group.
Determining whether the conduct of the group qualifies as a terrorist activity is, therefore, a core element of the listing process. Often the entities in question do not operate substantially or at all in Canada; nevertheless, the relevant conduct must meet the definition of terrorist activity in the Criminal Code. It’s not enough to have the group or the activity identified as terrorism by a foreign government or international organization (such as the United Nations).
So what matters then, in the first instance, is what constitutes “terrorist activity” and whether the government can meet the “reasonable grounds” threshold. As defined by the Criminal Code, terrorist activity comes in two forms. First, it is a terrorist activity to engage in a list of enumerated offences stemming from international treaties to which Canada is a party (i.e. hijacking an aircraft). Second, an activity qualifies as “terrorist” if three elements are present. It might help to think of three elements as the outcome, motive, and purpose elements. The act or omission must:
(1) Intentionally [outcome element]
(A) causes death or serious bodily harm to a person by the use of violence;
(B) endangers a person’s life;
(C) causes a serious risk to the health or safety of the public or any segment of the public;
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C); or
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C).
(2) Be committed in whole or in part for a political, religious or ideological purpose, objective or cause [motive element]
(3) Be committed in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada. [Purpose element.]
When seeking to list an entity it is ideal, although not necessary, for the Minister to rely on publicly available information. The reason behind this is simple: as an element of the crime, a prosecutor can be challenged on whether a group is indeed “terrorist”; if the government has relied on secret information then that might be difficult or impossible to proffer in open court (the intelligence-to-evidence dilemma), whereas publicly available information can be easily used to make the case. So, for example, criminal convictions for crimes that meet the definition of terrorist activity that are attributable to the group are ideal. Additionally, public statements by the group describing their political, ideological or religious motivations, threating to commit terrorist acts, or taking responsibility for acts of terrorism are often used in support of an entity’s listing.
In the case of Blood and Honour and Combat 18, the evidence cited on the public safety website is a 2012 conviction of four members for the murder of two men in Florida “because the group considered them ‘inferior’” and a 2012 bombing of Romani families in the Czech Republic. While these are the acts that satisfy the definition of terrorist activity, we should in no way take this to mean that these are the only or even the most recent violent actions engaged in by these groups that might support a terrorist listing. Blood and Honour. What’s found on the Public Safety website are the “slam dunk” public examples of how the group meets the definition of a terrorist group. (Don’t believe us, go and look at the listing for Al Qaeda).
The Consequences of Being a Listed Entity
Notably, both Blood and Honour and Combat 18 are listed separately but the basis for their listing is the same. This may be for practical reasons. Combat 18 is regarded as the combat/paramilitary wing of Blood and Honour: a sub-group if you will. Members of the sub-group may not recognize themselves as being a member of Blood and Honour. Moreover, should the two groups separate before the next governmental review of the listing (which under C-59 will now take place every 5-years), both remain listed and subject to the Criminal Code’s constraints, which includes the potential for seizing and forfeiture of assets and property of the group or its members (see e.g. s. 83.13, s. 83.14) and criminalizes the provision of financial and other forms of support to the group (see e. g. s. 83.08).
Terrorism offences are constructed to help police pre-empt violent terrorist activity before it takes place. As such, rather than primarily criminalizing violent activity that has already caused deaths or serious bodily harm or property damage, the majority of terrorism offences are designed to capture “pre-crime” activity and the conduct of those who support, counsel, facilitate, harbour or are accessories to those who engage in that pre-crime activity. Designating right wing extremist groups as a terrorist entity appears to be an effort to not only recognize these groups for what they are, but to criminalize the preparatory conduct and the actions of those who may not necessarily engage in acts of violence perpetrated by these groups, but support and assist these groups in carrying out their agenda. This gives law enforcement greater power to disrupt the group’s activities before there are executed, and gives them access to certain tools in the Criminal Code that are only available when investigating terrorism offences (i.e to secure a wiretap the Crown need not establish that other investigatory techniques have been tried and failed). Moreover, the government’s new openness to recognizing the conduct of these groups as terrorist activities puts these entities squarely in the cross hairs of CSIS, whose mandate includes the investigation and disruption of terrorism but does not extend to other forms of criminal activity like hate speech or violence motivated by hate.
(Another possible consequence of this listing would arise at the trial stage. Almost half of Canada’s terrorism offences requires proof of the existence of a terrorist group as an element or predicate of the offence (e.g. s. 83.18(1) participation in activity of terrorist group, or s. 83.181, leaving Canada to participate in activity of terrorist group). When an entity is listed, the Crown need not establish that the organization in question is a terrorist group under the Criminal Code. Still, as the Hersi court noted, a person can only be convicted of participation in a terrorist group if they acted to enhance that group’s ability to “facilitate or carry out terrorist activity”. The court must, therefore, be persuaded by the Crown beyond a reasonable doubt that even a listed group engages in terrorist activity.)
With all this in mind, in Canadian terrorism trials to date the Crown has not tended to rely on listed terrorist entities to make its case at trial; rather, it has tended to either prove in court—and beyond a reasonable doubt—that a terrorist cell itself forms an independent terrorist group (for example the Via Rail bombers, the Toronto 18, or with respect to Canada’s first terrorism trial, R v. Khawaja), or rely on an offence that does not require proof of a terrorist group (e.g. s. 83.19, Facilitating terrorist activity). As a result, once a case is actually contested at the trial stage, the listing regime has played a less important role than that which it might seem to play pre-charge. The greater effect of the listing of far right groups as terrorist entities might then be that it signals (pre-charge) to investigators and prosecutors that far right ideologies can form the (motive) basis for terrorism charges, in turn encouraging them to proceed as such. And this is no small turn of events: to date, there have been 55 individuals charged with terrorism in Canada, and not a single one of those individuals might be described as far right extremists. (Indeed, 54 of the 55 are best described as Islamist or Jihadi extremists.) Yet there are certainly prominent examples where far right extremists have committed acts that might fit the terrorism bill, but were not charged as such: think R v. Bissonnette, the Quebec mosque shooter, R v. Bourque, the RCMP killer, or R v. Souvannarath, the individual that planned a shooting spree in a Halifax mall. It seems that there is something about far right ideologies—fractious as they often are—that is causing even Justice Ministers to think they are too incoherent to form the basis of terrorism charges. Reframing the legal understanding of far right extremism to make clear that certain far right ideologies can form the motive-basis for terrorism charges is thus a very big deal, even if it might not have a prominent role once the case goes to criminal trial.