INTRODUCTION AND BRIEF DESCRIPTION
This section states that an offense can be committed under subsection (1) of Section 83.21 regardless of whether or not the instructed activity is carried out, the accused knows the identity of the person carrying out the activity, or the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
SECTION WORDING
83.21(2) An offence may be committed under subsection (1) whether or not (a) the activity that the accused instructs to be carried out is actually carried out; (b) the accused instructs a particular person to carry out the activity referred to in paragraph (a); (c) the accused knows the identity of the person whom the accused instructs to carry out the activity referred to in paragraph (a); (d) the person whom the accused instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried out for the benefit of, at the direction of or in association with a terrorist group; (e) a terrorist group actually facilitates or carries out a terrorist activity; (f) the activity referred to in paragraph (a) actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or (g) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group. 2001, c. 41, s. 4.
EXPLANATION
Section 83.21(2) of the Criminal Code of Canada deals with offences related to instructing or facilitating terrorist activities. This section clarifies that an offence can be committed even if the activity that the accused instructs to be carried out is not actually carried out, or if the accused does not instruct a particular person to carry out the activity. The accused does not need to know the identity of the person whom they instruct to carry out the activity, or if that person knows that it is to be carried out for the benefit of a terrorist group. Furthermore, a terrorist group doesn't necessarily need to have actually carried out a terrorist activity for this offence to have been committed. The section also explains that the activity referred to in the instruction must significantly enhance the ability of a terrorist group to facilitate or carry out a terrorist activity, and that the accused must know the specific nature of any terrorist activity that may be facilitated or carried out by the terrorist group. Overall, this section of the Criminal Code of Canada serves to broaden the scope of offences related to terrorist activities, by allowing for convictions even in cases where no actual terrorist activity has been carried out. This helps to address the serious issue of terrorism in Canada and ensures that individuals who are involved in any aspect of planning or facilitating such activities can be held accountable for their actions.
COMMENTARY
Section 83.21(2) of the Criminal Code of Canada is an important piece of legislation that highlights the Canadian government's commitment to curbing terrorism within its borders. This section establishes legal provisions that criminalize the act of instructing others to carry out terrorist activities, regardless of whether or not these activities are actually carried out. This section covers a broad spectrum of activities that can potentially facilitate terrorist activities, including promoting or making weaponry, training individuals for combat, and transmitting information related to terrorist activities. In essence, Section 83.21(2) places the burden of preventing terrorism squarely on the shoulders of Canadian citizens and allows the government to prosecute those who contribute to terrorism in any way, shape, or form. This section recognizes that terrorist activity is often carried out by networks of individuals rather than isolated actors, and it seeks to disrupt these networks by targeting those who guide, coordinate, or encourage terrorist activities. The fact that this section specifically mentions that an offence may be committed even if the activity is not actually carried out is critical. This recognition emphasizes that the intention to carry out a terrorist activity is as severe a threat as the execution of that activity. The government's proactive stance on terrorism prevention through this section demonstrates a commitment to apprehending and punishing those who would take advantage of Canada's open society to plan and organize terrorist attacks. Furthermore, it is vital that those who are responsible for instructing or training individuals are held legally responsible, even if they do not directly carry out the terrorist activity. This legal framework effectively disrupts the planning, organization, and financing of terrorist activity, ultimately reducing the likelihood of an attack occurring on Canadian soil. Overall, Section 83.21(2) of the Criminal Code of Canada is a meaningful piece of legislation aimed at combating terrorism through effective prevention measures. By empowering citizens to detect and report potentially threatening activity, and by prosecuting those who knowingly instruct others to carry out terrorist activities, Canada is sending a clear message that it values safety and security for all its citizens.
STRATEGY
Section 83.21(2) of the Criminal Code of Canada is a critical provision that has significant implications for counterterrorism efforts in the country. The section criminalizes activities that promote or instruct others to commit terrorism offenses, and its wide scope provides prosecutors with a potent tool to disrupt terrorist plots and networks. However, the provision's breadth and flexibility also raise strategic considerations when dealing with it, including legal and operational challenges. This essay examines some of the strategic considerations that must be taken into account when using section 83.21(2) for counterterrorism purposes and offers some strategies that could be employed to maximize its effectiveness. One of the first strategic considerations is the scope of the provision and its potential impact on civil liberties. Section 83.21(2) criminalizes activities that may not necessarily involve a clear and present danger of terrorism but could still be deemed as preparatory to terrorist acts. For instance, instructing someone to build an explosive device or researching potential targets could be regarded as terrorism offenses even if no terrorist act has occurred. While this flexibility enables law enforcement to intervene earlier in the terrorist cycle, it could also lead to abuses and infringements of civil liberties, such as freedom of speech and association. Therefore, a strategy would be to ensure that the application of section 83.21(2) is narrowly tailored to genuine terrorism threats and does not unduly impede constitutionally protected rights. Another strategic consideration is the difficulty of proving mens rea or intent in cases involving section 83.21(2). Unlike other terrorism offenses that require the prosecution to demonstrate that the accused had a specific intent to commit a terrorist act, section 83.21(2) only requires proof that the accused knew or was reckless about whether their conduct could enhance the ability of a terrorist group to carry out an attack. In practice, this means that prosecutors may have to rely on circumstantial evidence, such as intercepted communications or surveillance, to establish the accused's cognitive state. Therefore, a strategy to mitigate this challenge would be to conduct robust investigations that collect and analyze all available intelligence to build a compelling case against the accused. Another strategic consideration is the challenge of coordinating efforts among different law enforcement and intelligence agencies. Section 83.21(2) cases often involve complex and multi-jurisdictional investigations that require close collaboration between different actors, such as police, intelligence agencies, and prosecutors. Effective coordination and information-sharing are critical to ensure that all relevant intelligence is consolidated, and no gaps exist that could hamper the success of the investigation. Therefore, a strategy would be to establish clear protocols and procedures for sharing information among different agencies and promote a culture of cooperation and trust to foster effective coordination. Another strategic consideration is the need to balance the crime prevention objectives of section 83.21(2) with the broader national security interests of Canada. While disrupting terrorist plots and networks is the primary goal of the provision, it must also be framed within a broader national security context that takes into account political, economic, and social factors that contribute to radicalization and extremism in the country. Otherwise, the provision could be seen as a reactive measure that does not address the root causes of terrorism. Therefore, a strategy would be to adopt a holistic approach to counterterrorism that integrates law enforcement with broader preventive and protective measures, such as community engagement, social programs, and political and diplomatic efforts. In conclusion, section 83.21(2) of the Criminal Code of Canada is a critical provision in the country's counterterrorism arsenal that provides law enforcement with a powerful instrument to disrupt terrorist activities. However, its wide scope and flexibility also raise strategic considerations that must be taken into account to maximize its effectiveness and minimize its unintended consequences. The strategies proposed above, such as ensuring constitutional compliance, conducting robust investigations, promoting inter-agency coordination, and adopting a holistic approach to counterterrorism, are essential ingredients of a comprehensive and effective counterterrorism strategy.