Yes. Thank you, Mr. Chair.
The military exclusion language under proposed section 82.7 is similar to that presently set out in section 431.2 and subsection 83.01(1) of the Criminal Code. Adding such language to the military exclusion in this clause, while not adding it to existing law in both the military exclusions in section 431.2, relating to terrorist bombings, and subsection 83.01(1), relating to the definition of terrorist activity, may have unintended consequences for the interpretation of these two existing provisions.
The Supreme Court of Canada, in the unanimous December 2012 Khawaja decision, provided guidance on the application of the military exclusion clause used in the definition of “terrorist activity” in the Criminal Code. In rejecting the application of the military exclusion to the defendant, the court found that, one, the military exclusion clause functions as a defence, and therefore it is for the defence to raise an air of reality to the claim that it applies; and two, the conduct in question must otherwise be in accordance with applicable international law, such as the Geneva Conventions.
As the Khawaja court noted, “The Geneva Conventions prohibit acts aimed at spreading terror amongst civilian populations...”. In order for the defence, under proposed section 82.7 to apply, the act must be lawful under international law.
In my view, it is unlikely that a terrorist entity would meet that threshold. So we do not support this amendment.