Thank you very much, and thanks for allowing us to be here.
I want to restrict my remarks to one particular component of the bill, the proposal to remove from the Criminal Code the offence of advocating or promoting a terrorist offence, and to replace it with the offence of counselling a terrorist offence. We are sympathetic to the expressed government motivation that led to the introduction of this change. Nonetheless, we believe the proposal is problematic.
Public Safety Minister Ralph Goodale expressed concern that there were no prosecutions under the existing law. He introduced the change, so he said, in order to introduce a more familiar offence for which prosecution would be easier. We, too, of course, are concerned by the absence of prosecutions under the existing law. However, it is far from obvious that changing the offences of advocacy and promotion to the offence of counselling will resolve this problem.
For one, we note, as you've already seen in the submission of the International Civil Liberty Monitoring Group, that there is the view that the offence of counselling is superfluous now because that offence already exists in the Criminal Code. If that submission is right, and the offence is already there, then shifting the offence of advocacy and promotion of terrorism to counselling of terrorism will do nothing to solve the problem of inactive prosecution. Saying the same thing twice does nothing to spur prosecutions. If incitement to commit a terrorist offence was not prosecuted under the present counselling law, there's no reason why it would be prosecuted under a repetition of that law.
The alternative, of course, is that the proposed counselling offence does add something new, that it is not just a re-enactment of the already-existing offence. However, if that is the case, then the advantage of familiarity with an existing standard that the minister touted does not exist. If this counselling offence is different from already-existing counselling offences, then the new law will suffer from the same teething problems that the existing advocacy and promotion law have arguably suffered.
The rationale of the minister for the need to enact a familiar offence to make the law work is further undermined by the fact that advocacy and promotion are not new and different offences. The offence of advocacy exists for both genocide and sexual activity with a person under the age of 18. The offence of promotion exists both for genocide and hatred. In my written materials, I go through a number of cases in the Supreme Court of Canada that look at, define, and circumscribe these offences of advocacy and promotion. Therefore, we already have plenty of legal guidance about the meaning of the concepts of advocacy and promotion.
The notion that prosecutors have stayed their hands because they're uncertain about the meaning of the current law or worried about its overbreadth is not supported by an examination of the Criminal Code and the jurisprudence.
The minister has identified a real problem: a failure of prosecutions under the existing law despite the multiplicity of apparent violations. The solution he proposes, we suggest, does not directly address the problem. The solution, we suggest, lies elsewhere. The prosecution of incitement to terrorism within crown investigation and prosecution offices needs to be given a higher priority. There need to be more resources, more expertise, more training. There needs to be more international co-operation, more experience-sharing, more learning from others, including Israel, who have had to grapple with this problem.
We would encourage Canada to sign and ratify the Council of Europe Convention on the Prevention of Terrorism, which incorporates the specific obligation to prohibit public provocation of terrorism. Ratifying the treaty would not only allow for closer collaboration between Canada and other terror-combatting states, it would also make directly relevant to Canada the jurisprudence in other countries and the European Court of Human Rights, which interpret the relevant treaty provisions.
The government could publish advisory guidelines on its understanding of the meaning of the advocacy or promotion of terrorism. The guidelines would not bind prosecutors but could help dispel uncertainty. One suggestion already indicated by my colleague, Michael Mostyn, is that the guidelines should state that glorification of terrorism should be included in advocacy or promotion of terrorism.
We welcome the fact that the government and the committee are giving the combat against incitement to terrorism the attention it deserves. It remains, nonetheless, for us all to choose the best course to follow in combatting this scourge.
Thank you.