Thank you. Quite a bit can be said.
The Anti-terrorism Act, 2015, did create a new offence of advocating or promoting terrorism offences and the commission of terrorism offences in general. This was to respond to a gap or uncertainty in the law. The pre-existing counselling provisions in the Criminal Code would not apply where what is being counselled was not a specific terrorism offence but any, some, or all of the full range of terrorism offences found in the Criminal Code.
In Bill C-51, the offence of advocating or promoting the commission of terrorism offences in general was criticized for using vague, overbroad, and potentially violating the charter because of its use of the phrase “advocates or promotes the commission of terrorism offences in general”. The government did a green paper consultation and has come back with a proposed reformed section 83.221 with the same intent but with wording to apply a well-known concept of counselling. Essentially it is the same thing. Counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. Essentially advocating and promoting is the same thing, but counselling is clear to understand.
There were briefs and testimony before the committee trying to get clear on how the proposed revised section 83.221 would interact with the current offences of counselling in sections 22 and 464 of the Criminal Code. Some believed that the offence is superfluous and duplicates sections 22 or 464. There was some confusion as to the purpose of the proposed provision. The overlap was intended to give the prosecutor increased flexibility in deciding which offence to charge on a given case, having regard to the particular circumstances of the case.
Bill C-59 proposed, as you can see, a changed offence using a more familiar language, which is a counselling offence. I might just read it. Proposed subsection 83.221(1) says:
Every person who counsels another person to commit a terrorism offence—other than an offence under this section—is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
It continues, in proposed subsection 83.221(2):
An offence may be committed under subsection (1) whether or not
(a) a terrorism offence is committed; and
(b) the person counsels the commission of a specific terrorism offence.
Further to the discussions in the committee, and on further thought, the view that the overlap was intended to give the prosecutor increased flexibility was the initial design of the proposed offence or revision of the offence, but we've noticed that section 464 of the Criminal Code provides that, except where otherwise expressly provided by law, where one person counsels another to commit an indictable offence that is not committed, that person is liable to the same penalty as one who attempted to commit the offence, which is generally half the maximum penalty for the completed offence. In the case of life imprisonment, it would be 14 years, for example.
It would be potentially open to interpretation that, due to the exception in section 464, which is a counselling offence that is not committed, the proposed section 83.221 would cap any counselling related to terrorism offences that are not committed at a maximum penalty of five years' imprisonment. This is a legal problem that could significantly limit the punishment available, but could be rectified by amending the bill.