The proposed defence is modelled on the law of counselling, and the Supreme Court of Canada, in the cases of Sharpe and Keegstra, held that the terms advocating, promoting, and counselling all mean essentially the same thing, and that is active encouragement. We're looking at active encouragement of the commission of terrorism offences in general.
Counselling now requires that there be some degree of specificity as to the offence or type of offence being counselled. This proposed offence uses the term, which is defined in the Criminal Code, “terrorism offence”. That includes a broad range of conduct, spanning from violence against people and destruction of property to providing financial and material support and engaging in recruitment, but if one actively encourages the commission of terrorism offences in general without being specific as to the offence or the type of offence—for example, where violence as opposed to recruitment or financing is being actively encouraged—there's some uncertainty about the application of the existing offence of counselling, and the applicable penalty that would apply.
The mens rea that is in the proposed offence comes from the current criminal law in counselling where, in the case of R. v. Hamilton, another Supreme Court of Canada case, it determined that knowledge and recklessness are valid mens rea concepts for the offense of counselling. They are included in this proposed offence.
As well, if we're looking at active encouragement of terrorism offences, there are no statutory defences or exemptions for private conversations that apply to the law of counselling, or for example, the most serious hate crime offence of advocating or promoting genocide.
Those are some comments one might make.