Is it a Crime to be a Member of a Terrorist Organization?

This article was motivated by the September 11, 2001, terrorist attacks in the United States. As of December 18, 2001, section 83.05 of the Canadian Criminal Code allowed the Governor in Council to maintain a list of entities that have been deemed to be engaged in terrorism, facilitating it, or acting on behalf of such an entity. 

These entities are reviewed by the Minister and the Chief Justice of the Federal Court to ensure their suitability to be listed before they are published in the Canadian Gazette and on the website of Public Safety Canada. The Government intended the listing of entities to be a public means of identifying a group or individual as being associated with terrorism.

Definition of Entity Under the Anti-Terrorism Act

An entity includes a person, group, trust, partnership or fund, or an unincorporated association or organization that has been deemed to be associated with terrorism. The Anti-Terrorism Act, enacted after September 11, 2001, allows the Government of Canada to create a list of entities.

Implications of Being Listed

It is important to note that it is not a crime to be listed and you cannot be charged with a criminal offence simply for being on the list or being associated with a group or individual on the list. However, the entity’s civil liberties can be suspended and their property can be the subject of seizure/restraint and/or forfeiture. 

Obligations of Financial Institutions

Financial institutions have to abide by reporting requirements with respect to an entity’s property and must not allow those entities to access the property. These institutions are prohibited from dealing or otherwise disposing of the property. It is a criminal offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group. This participation is only a criminal offence if its purpose is to enhance the ability of any terrorist group to facilitate or carry out terrorist activity.

Terrorism Criminal Offences and Penalties

This section discusses the criminal offences related to terrorism according to the Criminal Code. 

Financing of Terrorism

The financing of terrorism is a criminal act. Anyone who willfully and without lawful justification provides or collects property with the knowledge or intention that it will be used, in full or in part, to carry out an act that constitutes a terrorist offence. This is punishable by imprisonment for not more than 10 years. 

Use of Property for Terrorist Activities

Similarly, collecting property, providing or inviting a person to provide, or making property or related financial services available with the intention or knowledge that they will be used for facilitating or carrying out any terrorist activity or benefiting any person who facilitates or executes such an activity is a criminal offence. The punishment for this offence is also imprisonment for up to 10 years. 

It is a crime to use property, directly or indirectly, in part or in whole, for facilitating or carrying out a terrorist activity. The same applies to individuals who possess property with the intent or knowledge that it will be used for enabling or executing a terrorist activity. This offence carries a potential prison sentence of up to 10 years. 

Participation, Facilitation, Instruction, and Harboring in Terrorist Activities

Furthermore, it addresses the crimes of participating, facilitating, instructing, and harbouring related to terrorist activities. This could involve knowingly participating in or contributing to any terrorist group’s activity with the primary goal of enhancing the group’s ability to facilitate or carry out a terrorist activity. The act specifies potential considerations used by the court in determining whether an accused is participating or contributing to the activities of a terrorist group. 

Hoax Regarding Terrorist Activity

Finally, it discusses the criminal offence of a hoax regarding terrorist activity. Committing an act that is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur, is illegal. The penalty for this offence ranges from summaries to imprisonment for terms not exceeding five years, ten years, or even life, depending on the severity and impact of the hoax. 

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Proceedings and Jurisdiction Regarding Terrorism Offence

Jurisdiction for Proceedings

Any proceedings in respect of a terrorism offence or an offence under section 83.12, may not commence without the consent of the Attorney General. The jurisdiction for such proceedings, whether or not the person is in Canada, lies with the Government of Canada. 

Commencement of Proceedings

The Attorney General of Canada, or counsel acting on his or her behalf can conduct these proceedings in any territorial division in Canada.

Required consent from the Attorney General is necessary for proceedings in respect of a terrorist offence. Proceedings may be commenced at the instance of the Government of Canada, regardless of the person’s location. In such a case, the accused may be tried and punished as if the offence had been committed in the territorial division where the proceeding is conducted.

Terrorist Organizations Designated by the Canadian Government

According to the Canadian Government, there are numerous terrorist entities. These include the Abdallah Azzam Brigades (AAB), Abu Nidal Organization (ANO), Abu Sayyaf Group (ASG), Al-Murabitoun, Al-Muwaqi’un Bil Dima, Al Qaida, and its branches in the Arabian Peninsula (AQAP) and in the Islamic Maghreb (AQIM). Others include Al Shabaab, Al-Aqsa Martyrs’ Brigade (AAMB), Al-Gama’a al-Islamiyya (AGAI), Al-Ittihad Al-Islam (AIAI), and Ansar al-Islam (AI).

Further on the list are the Armed Islamic Group (GIA), Asbat Al-Ansar (AAA), also known as The League of Partisans, Aum Shinrikyo, Autodefensas Unidas de Colombia (AUC), Babbar Khalsa International (BKI), and Boko Haram. The list continues with the Caucasus Emirate, Ejército de Liberación Nacional (ELN), Euskadi Ta Askatasuna (ETA), and the Fuerzas Armadas Revolucionarias de Colombia (FARC).

Gulbuddin Hekmatyar is also listed, as is his Faction of the Hezb-e Islami, Hezb-e Islami Gulbuddin (HIG), Hamas (Harakat Al-Muqawama Al-Islamiya or the Islamic Resistance Movement), and the Haqqani Network. Other named organizations include Harakat ul-Mudjahidin (HuM), Hizballah, International Relief Fund for the Afflicted and Needy-Canada, International Sikh Youth Federation (ISYF), and Islamic Army of Aden (IAA).

Further entities on the list include the Islamic Movement of Uzbekistan (IMU), Islamic Revolutionary Guard Corps Qods Force, Islamic State, and its Sinai Province (ISSP), Jabhat Al-Nusra, Jaish-e-Mohammed (JeM), Jaysh Al-Muhajirin Wal-Ansar (JMA), Jemaah Islamiyyah (JI), and Kahane Chai (Kach).

Also stated are the Kurdistan Workers Party (PKK), Lashkar-e-Jhangvi (LJ), Lashkar-e-Tayyiba (LeT), Liberation Tigers of Tamil Eelam (LTTE), and the Movement for Oneness and Jihad in West Africa. Palestinian groups specified are the Palestine Liberation Front (PLF), Palestinian Islamic Jihad (PIJ), Popular Front for the Liberation of Palestine – General Command (PFLP-GC), and Popular Front for the Liberation of Palestine (PFLP).

Sendero Luminoso (SL) is mentioned along with the Taliban, Tehrik-e-Taliban Pakistan (TTP), and the World Tamil Movement (WTM).