I'll take a step back, if I may. On this motion, I can share some observations, but I can't provide legal advice. If we look at the wording of the motion and the word “promotes”, I can say what the court has said “promotes” means, which is “active support or instigation”; it is more than simple encouragement or advancement. Then the courts have said what “counselling” is: “deliberate encouragement or active inducement of the commission of a criminal offence”.
I guess the committee would have to consider whether in fact we are creating, through this motion, a new terrorism counselling offence; that is step one. The Criminal Code already has counselling offences. The one specific to terrorism is at section 83.221, and that's the offence of counselling the commission of a terrorism offence.
Against that backdrop, if this motion is considered and if the committee considers it to be more of a counselling offence, then the committee might want to consider whether or not it aligns with the existing counselling offence, and maybe I can share a few observations on that.
With respect, for example, to the mental fault requirement, the committee might want to consider here the motions' proposing “wilful”, which means intentional. Other counselling offences in the code include recklessness, and recklessness means the person is aware that there's a danger or risk in their conduct that could result in the crime in question and they nevertheless take the chance.
The committee may also wish to consider the penalties. The existing terrorism counselling offence is, I believe, a max of five years' imprisonment, so that would align with what the motion is proposing.
In terms of defences, again, this motion is proposing to merge two existing offences: a wilful promotion offence and a counselling terrorism offence. It's actually section 83.18, which deals with participating in an activity of a terrorist group.
The committee may want to consider whether importing hate propaganda and hate speech defences is a right fit with a terrorism counselling offence. For example, is the intent to shield someone from criminal liability who counsels a terrorist activity if the statement is true?
Those are general observations on some of the points the committee may wish to consider.