section 83.05(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the Governor in Council to establish a list of entities involved in terrorist activities or associated with such entities.

SECTION WORDING

83.05 (1) The Governor in Council may, by regulation, establish a list on which the Governor in Council may place any entity if, on the recommendation of the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that (a) the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or (b) the entity is knowingly acting on behalf of, at the direction of or in association with an entity referred to in paragraph (a).

EXPLANATION

Section 83.05(1) of the Criminal Code of Canada provides the Governor in Council with the power to establish a list of entities that are suspected of carrying out, attempting to carry out, participating in, or facilitating a terrorist activity. This list is known as the terrorist entity list." The Governor in Council can place an entity on the list if there are reasonable grounds to believe that it has engaged in such activities, or is acting on behalf of or in association with an entity that has carried out such activities. Being placed on the terrorist entity list has significant legal implications, as entities on the list are subject to various restrictions and sanctions. For instance, it is an offense to knowingly participate in or contribute to any activity that supports or benefits an entity on the list. Additionally, financial institutions are required to freeze the assets of such entities and prevent them from receiving financial services. Overall, section 83.05(1) plays a crucial role in Canada's counter-terrorism efforts as it provides the government with the power to identify and restrict entities that pose a threat to national security. However, it is important to ensure that the process for placing entities on the list is fair and transparent, and that proper safeguards are in place to protect the rights of entities that may be mistakenly identified as engaging in terrorist activities.

COMMENTARY

Section 83.05(1) of the Criminal Code of Canada grants the Governor in Council the authority to establish a list of entities that may be placed on it if, on the recommendation of the Minister of Public Safety and Emergency Preparedness, there are reasonable grounds to believe that the entity has knowingly carried out, attempted to carry out, participated in, or facilitated a terrorist activity or is knowingly acting on behalf of, at the direction of, or in association with such an entity. The primary objective of this section is to enhance Canada's security by identifying and designating entities that pose a threat to public safety and national security. Canada, like many countries worldwide, is not immune to terrorism. The threat of terrorism has, over the years, grown significantly in Canada, and this has necessitated the need for measures to be put in place to address this security challenge. Section 83.05(1) of the Criminal Code of Canada is one of such measures and seeks to give Canada's security apparatus some teeth against terrorist threats. One of the advantages of this section is that it delegates authority to the Governor in Council to designate such entities. This approach ensures the involvement of the executive arm of government, which is better positioned to assess and respond to national security threats. The section is also flexible, meaning that it provides the government with the power to review and make adjustments to the entities on the list based on new information or emerging threats. However, one of the challenges of this section is that it could potentially infringe on the rights of innocent parties by designating certain entities without due process. This could result in reputational damage and financial loss for entities that are not engaged in terrorist activities but are mistakenly placed on the list. Given the serious implications of being designated as a terrorist entity, there is a need to ensure that all parties have a fair and transparent process to challenge such designation. Thus, it is essential to strike a balance between the interests of national security and the rights of individuals and entities. The government must ensure that the process of designating entities is transparent, fair, and just, and provides opportunities for due process and an adequate appeals process. There is also a need to ensure that such lists are kept up to date and reviewed regularly. Overall, section 83.05(1) of the Criminal Code of Canada is an essential measure in Canada's fight against terrorism. However, there must be a continuous effort to ensure it strikes the right balance, ensures that innocent entities are not unduly penalized, and respects people's rights and civil liberties. IEnumerable efforts to ensure that security measures respect human rights is a positive step towards building more secure and sustainable societies.

STRATEGY

One of the most significant strategic considerations when dealing with Section 83.05(1) of the Criminal Code of Canada is balancing national security interests with the protection of fundamental rights and freedoms. The power granted to the Governor in Council to establish a list of entities suspected of being involved in terrorist activities can significantly impact the liberty, reputation, and financial interests of affected individuals and organizations. Therefore, strategies must be employed to ensure that listing decisions are reasonable, proportionate, and evidence-based and that affected entities are provided with procedural safeguards to challenge their listing. One possible strategy for dealing with this section of the Criminal Code of Canada is to enhance transparency and accountability in the listing process. This may involve adopting clear and precise criteria for listing decisions, ensuring that the Minister of Public Safety and Emergency Preparedness is sufficiently independent and impartial, and providing affected entities with meaningful opportunities to challenge their listing before an impartial forum. Such measures will help to ensure that the rights of affected individuals and organizations are adequately protected, and that the list remains an effective tool for combating terrorism. Another important strategic consideration when dealing with this section of the Criminal Code of Canada is the potential consequences for foreign relations and diplomatic relations. Listing decisions may affect relationships with foreign states and their nationals, particularly if they affect entities that have activities or interests outside of Canada. Therefore, strategies must be adopted to ensure that listing decisions are informed by consultations with relevant foreign governments and that they are consistent with international law and obligations. It is also important to recognize that a listing decision can lead to significant reputational harm and financial consequences, not just for the entity but also for its customers, suppliers, employees, shareholders and others. Therefore, it is critical to ensure that the listing process is fair and reasonable, and that affected entities are provided with adequate due process protections. Appeals must be timely and impartial, and sanctions must be proportionate to the severity of the alleged conduct. Overall, dealing with section 83.05(1) of the Criminal Code of Canada involves several strategic considerations, including balancing national security interests with fundamental rights and freedoms, enhancing transparency and accountability, protecting foreign relations and diplomatic relations, and providing due process protections to affected entities. These considerations must be addressed through a range of strategies, including clear and precise criteria for listing decisions, an independent and impartial minister, consultations with foreign governments, appeals mechanisms and proportionate sanctions. By adopting such strategies, Canada can effectively combat terrorism while respecting the rights of individuals and organizations.

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