Thank you very much.
On behalf of B'nai Brith Canada, I would like to address only one question posed in the “Our Security, Our Rights” green paper. The question, found on page 46 of the background document, is this: “Should the part of the definition of terrorist propaganda referring to the advocacy or promotion of terrorism offences in general be removed from the definition?”
Our answer to that question is no. Freedom of expression is a right that must be jealousy guarded, but so must the right to be free from terrorism. Generally, human rights have to be viewed as a whole, and rights have to be balanced off against each other. Practically, what this means is that the rights of one set of people have to be balanced off against those of another. In this case, it is the right to security of the person of victims and potential victims of terrorism that must be balanced against the free speech rights of those advocating or promoting terrorism.
We see the addition to the definition of “terrorist propaganda” of advocacy or promotion of terrorism offences in general as a re-equilibration of the balance in light of the enhanced terrorist threat with which the planet in general and Canada in particular have been confronted. The world has changed, and the balance has to change too. Victims and potential victims need better protection than they have had. Whether the addition overshoots the mark requires consideration, but conceptually the drift makes sense.
We have three suggestions, which we believe are consistent with the spirit of the current legislation.
One is to import a defence for the offences of promotion or advocacy that already exists for the offence of promotion of hatred. The Criminal Code now provides that no person shall be convicted of wilful promotion of hatred who in good faith intended to point out, for the purpose of removal, matters tending to produce feelings of hatred towards an identifiable group. Something similar could be drafted for the offences of advocacy and promotion of terrorist activity.
Second, the legislated offence prohibits promotion and advocacy of “terrorism offences in general” without indicating what those offences are. We assume that this phrase “terrorism offences in general” refers to terrorism offences set out in the definition of that phrase in the Criminal Code. We suggest that whether the assumption is correct or not, the phrase “terrorism offences in general” be defined so that it is clear which offences are intended.
Our third suggestion relates to the requirement of consent of the Attorney General. A requirement of this consent, which we welcome, has its own problems. The relevant attorney general for these offences is the federal government Attorney General only for the territories. For the provinces, the relevant attorneys general are the attorneys general of the provinces in which the alleged offences occur. Our experience with the offence of wilful promotion of hatred has been that some attorneys general were most reluctant to consent to prosecution of this offence, even in clear-cut cases.
From our experience with the hate speech laws, we have learned that allowing for any member of the public to launch proceedings against any other member of the public without screening means too little in the way of safeguards to free speech. Conversely, legislating a requirement of consent of the Attorney General, without more, is too much of an obstacle to the effective working of the law.
We would suggest that in addition to the requirement of Attorney General consent, there be guidelines. Attorneys general, we certainly hope, would not end up having experience combatting advocacy and promotion of terrorism sufficient to make them become experts in the matter. They would benefit from guidelines.
We have a few proposals to make by way of what these guidelines should be, but obviously they could be added to. Here are some of our suggestions.
First, generally consent should be forthcoming if the Office of the Attorney General is satisfied beyond a reasonable doubt that a prosecution will lead to a conviction.
Second, given the gravity of the offence of terrorism, exercise of the discretion not to prosecute and therefore not to consent, even when the prosecution is satisfied beyond a reasonable doubt that a prosecution will lead to a conviction, should be uncommon.
Third, the right to freedom of expression is a factor that must be considered in determining whether to consent to prosecution, but the right of potential victims to be free from terrorism and the threat of terrorism must be given priority.
Fourth, freedom of expression considerations alone should not justify denial of consent when the offence is otherwise made out.
Fifth, a person commits the offence whether he or she personally promotes or advocates terrorism or causes another to do so.
Sixth, promotion or advocacy of terrorism includes glorification of terrorism for the purpose of emulation.
Seventh, for the offence of advocacy or promotion of terrorism to be committed, there need not be a direct linkage between the advocacy or promotion and any specific terrorist act.
Eighth, for the offence to be committed, it is not necessary to establish that a person was in fact encouraged or induced to commit an act of terrorism because of the advocacy or promotion.
I'll stop there. Our general approach, both in proposing amendments and in suggesting guidelines, is that a law criminalizing advocacy or promotion of terrorism should not be too easy to invoke, but it should not be a dead letter either.
Thank you.