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This site
provides information, articles and links to other resource materials dealing
with newly passed anti-terrorist and associated legislation in Canada and
Internationally.
Anti-Terrorism Resources
For more information or inquiries please contact one of the lawyers
listed below.
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Anti-Terrorism Law Resources
from Carters
| Reverse chronological listing |
Date
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Get
it
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Air India Report Examines Role of Charities
in Terrorist Financing by Terrance
S. Carter, Nancy E. Claridge and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.22, July 29, 2010 
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Overview of the Air India Report Concerning
Terrorist Financing by Terrance
S. Carter and Nancy E. Claridge.
Anti-Terrorism and
Charity Law Alert No.21, June 24, 2010
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Air India Report Warns Against Hindering
the Work of "Honest Charities" On June 17,
2010 the Final Air India Report was released. The link to
the full report is http://www.majorcomm.ca/en/reports/finalreport/.
The Report's Volume 5 on Terrorist Financing will be of particular
interest to charities. Several of the recommendations contained
in Volume 5 are encouraging for charities, specifically the
following:
"It is essential that measures
to defeat the use of charities or NPOs for TF [terrorist financing]
not unnecessarily impede the valuable activities of legitimate
organizations. Any new guidelines or best practices that the
CRA may contemplate to help it address TF in the charitable
sector should be developed in close cooperation with the charitable
sector. The work of honest charities should not be hindered
because of unrealistic guidelines or best practices."
Posted June 17, 2010
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Man Convicted in First Terrorism Financing
Case by Sean S. Carter.
On May 14, 2010, the first man to be charged under Canada's
anti-terrorism financing legislation was convicted and sentenced
to six months in jail. Prapaharan Thambithurai was charged
with committing an offence under section 83.03(b) of the Criminal
Code, which makes it an offence to provide or make available
property or services for terrorist purposes. After being convicted,
the prosecution asked for two years in prison, while the defence
asked for a three-year suspended sentence. Justice Powers
of the British Columbia Supreme Court sentenced Mr. Thambithurai
to six months in jail, a decision that has sparked significant
commentary in several major Canadian newspapers. Mr. Thambithurai
pled guilty to raising funds for the World Tamil Movement
("WTM"). The WTM was the first Canadian non-profit
organization to be added as a listed entity under section
83.05 of the Criminal Code. The WTM, which describes
itself as an ethno-cultural community association engaged
in humanitarian work, is alleged to have raised funds for
the Liberation Tigers of Tamil Eelam ("LTTE"). The
LTTE itself was added as a listed entity in April 2006. The
designation of the WTM as a listed entity came shortly after
Mr. Thambithurai was arrested and charged.
The provisions in section 83 of the
Criminal Code are in existence due to the Anti-Terrorism
Act ("the ATA"), which received Royal Assent
on December 18, 2001, as Bill C-36. The powers contained in
the ATA have been highly debated, often due to the alleged
incompatibility of those powers with the rights contained
in the Canadian Charter of Rights and Freedoms.
The outcome of this case will be precedential
with regard to subsequent terrorist financing prosecutions
under the Criminal Code. Charities and their boards
and staff are not immune from the ATA and, in fact, are particularly
vulnerable to its provisions when the charity is working in
"areas of conflict" susceptible to terrorist activities.
The text of the Anti-Terrorism Act can be located on
the Parliament of Canada's website at: http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?Language=E.
Organizations which have been categorized
as "listed entities" under section 83.05(1) of the
Criminal Code can be located online at: http://www.publicsafety.gc.ca/prg/ns/le/cle-eng.aspx.
Posted May 27, 2010
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Federal Government Introduces the Combating
Terrorism Act in the House of Commons
by Terrance S. Carter.
On April 23, 2010, Bill C-17, also known as the Combating
Terrorism Act, received its first reading in the House
of Commons. Bill C-17 proposes to reintroduce Criminal
Code provisions relating to investigative hearings and
recognizance with conditions that first came into force with
Bill C-36, the Anti-Terrorism Act, in December 2001.
However, the Anti-Terrorism Act contained a "sunset
clause" under which the provisions were set to expire
on March 1, 2007 unless extended by a resolution passed by
both houses of Parliament. A government motion to extend the
measures for three years was defeated in the House of Commons
on February 27, 2007, and as such, the provisions ceased to
have any force or effect. Similarly, Bill C-17 contains a
sunset clause, which provides that the reenacted provisions
will cease to have effect at the end of the 15th sitting day
of Parliament after the fifth anniversary of the coming into
force of Bill C-17, unless both houses of Parliament resolve
to extend the provisions.
One of the mechanisms which Bill C-17
proposes to re-enact is "investigative hearings",
the ability to compel individuals who may have information
about a terrorism offence to attend before a judge for an
investigative hearing, failing which that person can be arrested.
Additionally, Bill C-17 proposes to re-enact "preventative
detention", by which a peace officer, with the consent
of the Attorney General, would have the ability to present
information before a judge if he or she believes that a terrorist
act will be carried out and suspects that the imposition of
a recognizance with conditions or the arrest of a person is
required to prevent it.
Whether or not Bill C-17 will be passed
into law remains to be seen. However, the introduction of
Bill C-17 signals a trend by the Federal Government to revert
back to the more draconian provisions originally contained
in the Anti-Terrorism Act when it was first introduced shortly
after 9/11.Bill C-17 is available on the Parliament of Canada
website at: http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=4460308&file=4.
A review of Bill C-36, the Anti-Terrorism
Act, is available at: http://www.carters.ca/pub/alert/ATCLA/atcla07.pdf
and http://www.carters.ca/pub/bulletin/charity/2002/chylb12.htm.
Posted May 27, 2010
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Provisions of Patriot Act Permitting
Access to Personal Information Records in the United States
Extended by Terrance S. Carter.
On February 26, 2010, the House of Representatives in the
United States voted in favour of a bill extending certain
provisions of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the "Patriot Act"),
which had been due to expire on February 28, 2010. These provisions
relate to the ability of U.S. authorities, such as the FBI,
to obtain court-approved roving wiretaps, allow court-approved
seizure of records and property in anti-terrorism operations
and permit the surveillance of non-U.S. citizens engaged in
terrorism that may not be part of a recognized terrorist group.
Under section 215 of the Patriot Act, the FBI can obtain
court orders to access personal information held in the U.S.
or within the control of a U.S. entity without the consent
of the individual. This means that Canadian charitable and
non-profit organizations must take into consideration the
risk that if databases of personal information such as donor
lists were transferred into the U.S. jurisdiction, they could
lose control of this information under compulsion from U.S.
authorities. For more information in this regard, see Charity
Law Bulletin No. 128 entitled "Canadian Privacy Legislation
Requires Consent; U.S. Anti-Terrorism Legislation Takes Away
Consent" available at http://www.carters.ca/pub/bulletin/charity/2007/chylb128.htm.
With the extension of these provisions
for an additional year, Canadian charities must continue to
exercise caution and disclose to individuals that their personal
information could be subject to the Patriot Act, in
order to permit the individuals to make an informed decision
concerning whether or not they wish to permit the organization
to collect, use and disclose their personal information.
For more information see an article
written by Washington based Charity and Security Network a
collaboration of charities, grant-makers and advocacy groups,
online at: http://www.charityandsecurity.org.
Posted March 30, 2010
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Somalia Militant Group is Latest Addition
to Canada's "Listed Entities"
by Sean S. Carter.
On March 5, 2010, Al-Shabab, a militant group primarily based
in Somalia and East Africa, was added to the roll of the "Listed
Entities" established under section 85.05 of the Criminal
Code. The Listed Entities are a group of forty-two organizations
deemed by the Minister of Public Safety to have been associated
with or facilitated terrorist activities. Once a group is
designated as a listed entity, the assets of that entity can
be frozen and are subject to forfeiture. In addition, it is
a criminal offence to: directly or indirectly deal with any
property of a listed entity; facilitate transactions dealing
with the property of that entity; or, provide any financial
services regarding such property.
Given the broad definition of the "facilitation"
of terrorist activities under the Criminal Code, charities
and NGOs, particularly those that work in or in any way support
operations in conflict areas abroad, need to be aware not
only of the expanding roll of Listed Entities under the Criminal
Code, but also of the hundreds of organizations and approximately
four hundred and fifty individuals listed under the United
Nations Suppression of Terrorism Regulations pursuant
to the United Nations Act. The last group to be named
as a listed entity under the Criminal Code before Al-Shabab
was the World Tamil Movement on June 13, 2008. The World Tamil
Movement was also the first Canadian non-profit organization
to be designated as a listed entity.
For more information regarding the
process of designating organizations as listed entities and
other related issues, please see Anti-Terrorism and Charity
Law Alert No. 15 available at http://www.carters.ca/pub/alert/ATCLA/ATCLA15.pdf.
Posted March 30, 2010
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Federal Court of Australia Aid/Watch
decision by Terrance S. Carter.
On September 23, 2009, the Federal Court of Australia decision
Commissioner of Taxation v. Aid/Watch Incorporated
caused the charitable sector in Australia to have significant
concerns for charities involved in activist campaigning. The
decision concerned the charitable status of Aid/Watch, which
monitored, researched and campaigned for the delivery of effective
Australian and multinational aid. Aid/Watch had been advised
on October 2, 2006, that its status as a charity relative
to the applicable legislation had been revoked.
Although successful before the Administrative Appeals Tribunal,
which had restored Aid/Watch's charitable status, the Federal
Court subsequently ruled the main purpose of the charity was
political because the "natural and probably" consequences
of their activities would have an effect on public opinion
and then on government opinion. The organization's concern
with the effectiveness of aid delivery was clearly aimed at
the relief of poverty, as well as having an educational element
to their research activities, and Aid/Watch never sought to
influence the government by direct contact. However, the court
found that the prevailing aim of Aid/Watch was to influence
government so that the delivery of aid should conform to its
own view on how best to distribute it.
Aid/Watch had indicated on their website that they have applied
to the High Court of Australia to win back their charitable
status. The Canada Revenue Agency has similarly revoked charitable
status where non-charitable political purposes are more than
ancillary to a charity's purposes. As such, it is possible
that this decision could prove to be a relevant precedent
for consideration either by the CRA or by the courts in Canada.
Full decision available online at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/128.html
CRA policy regarding political activities is available online
at: http://www.cra-arc.gc.ca/tx/chrts/plcy/cps/cps-022-eng.html.
Posted February 25, 2010
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Charity Commission of England and Wales
Releases Compliance Toolkit on Charities and Terrorism
by Nancy E. Claridge and Terrance S. Carter.
Anti-Terrorism and
Charity Law Alert No.20, December 18, 2009
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U.S. Report on the Impact of Terrorism
Laws on Charities and How the Work of Charities Can Counter
Terror by Terrance S. Carter
and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.19, December 17, 2009
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OECD Report Suggests That Canada's
Charities Are Vulnerable to Abuse
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.18, July 29, 2009
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CRA's New Anti-Terrorism Checklist
-A Step in the Right Direction
by Terrance S. Carter and Nancy E. Claridge.
Anti-Terrorism and
Charity Law Alert No.17, Apr. 29, 2009
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Animal Rights Activist Added to the
FBI's "Most Wanted Terrorists List"
by Terrance S. Carter and Sean S. Carter, articling student,
Fasken Martineau DuMoulin LLP
On April 21, 2009, the Federal Bureau of Investigation ("FBI")
added Daniel Andreas San Diego to the FBI's "Most Wanted
Terrorists List," describing Mr. San Diego as an "animal
rights extremist." This marks the first time that a purported
"domestic terrorist" has been added to the FBI list,
which is primarily populated by those associated with the
attacks of September 2001 and Al-Qaeda. Mr. San Diego is accused
of being involved with bombings that resulted in property
damage to several office buildings and laboratories in the
United States.
The FBI's recent action reaffirms the
sweeping scope of anti-terrorism laws and enforcement actions
in the United States, particularly with respect to the potential
application to groups and individuals with a wide variety
of religious, political and ideological affiliations. Even
in Canada, it is evident in the Criminal Code definition
of "terrorist activity" and from several years of
law enforcement actions that the application of anti-terrorism
laws is not restricted to individuals with a particular religious
or political affiliation. Canada's anti-terrorism laws potentially
encompass individuals or groups associated with a wide variety
of ideological issues, including animal rights and environmental
protection. Charities need to be aware of the scope of potential
application of these laws when assessing their operations
to avoid inadvertent contravention of anti-terrorism laws,
particularly when reviewing associations with, or support
of, other domestic and international organizations. For more
information regarding the application of Canada's anti-terrorism
laws to individuals and groups associated with animal rights
and environmental issues, please see Anti-terrorism and
Charity Law Alert No. 1, available at http://www.carters.ca/pub/alert/ATCLA/atcla01.pdf.
Posted April 29, 2009
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OECD Report Suggests that Canada's
Charities Are Vulnerable to Abuse
by Terrance S. Carter, B.A., LL.B., and Sean S. Carter, B.A.,
LL.B.
On February 24, 2009, the Organisation for Economic Co-operation
and Development ("OECD") released the "Report
on Abuse of Charities for Money-Laundering and Tax Evasion"
(the "Report"). The Report is a survey of the status of charities
in 19 countries, the common methods of the "abuse of charities"
regarding tax fraud, and the detection strategies that different
countries have adopted to combat the misuse of charities.
In comparison with other countries surveyed in the Report,
Canada stands out as an example of a jurisdiction where charities
are particularly vulnerable to abuse by fraudulent tax and
money laundering schemes.
The Report is directed at advising national tax regulators
of potential weaknesses in the regulation of charities by
comparing different anti-tax fraud and money laundering regimes
from different countries and assessing their relative effectiveness.
Though the Report addresses the misuse of charities for fraudulent
and illegal ends generally, it does not provide a substantive
review or comparison of anti-terrorism measures and their
potential application to charities. The Report notes that
"the abuse of charities is becoming more organized and
more sophisticated" and consequently charities should
be aware of the increasing international pressure on national
governmental agencies to more effectively regulate the charitable
sector to prevent tax fraud and money laundering.
Posted Mar. 27, 2009
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Due Process and Anti-Terrorism Initiatives
Worldwide - Recent Developments
by Terrance S. Carter and Nancy E. Claridge, assisted by Sean
S. Carter.
Anti-terrorism and
Charity Law Alert No.16, Feb. 26, 2009
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Terrorism Concerns Cited as Reason
for Denial of Charitable Status
by Terrance S. Carter, B.A., LL.B., and Sean S. Carter,
B.A., LL.B.
An example of an applicant for charitable status being denied
due primarily to terrorism concerns has recently come to light
as a result of a front page National Post article dated
November 20, 2008. The Tamil Rehabilitation Organization (Canada)
(TRO) was denied charitable status in June 2006 by Canada
Revenue Agency (CRA) in part because of plans to carry out
humanitarian operations in parts of Sri Lanka an area of conflict
under the control of the Liberation Tigers of Tamil Eelam
(LTTE), a group listed under the United Nations Suppression
of Terrorism Regulations (UNSTR) and the List of Entities
under ss. 83.05(1) of the Criminal Code. Though CRA noted
efforts by the TRO to distance itself from organizations believed
to have direct ties with the LTTE, CRA indicated that it believed
that the TRO stills acts as part of a network supporting the
operations of the LTTE.
In its reasons for denying charitable status to the TRO,
CRA stated that it believed that the TROs resources may end
up in the hands of the LTTE or organizations controlled by
it. This belief, if founded, would be the basis of terrorism
financing or facilitation charges under the Criminal Code,
asset freezing and forfeiture under the UNSTR and other legislation,
or the controversial certificate process under the Charities
Registration (Security Information) Act. This situation
highlights both the continuing prominence that anti-terrorism
concerns have in the oversight of registered charities in
Canada and provides insight into how Canadas anti-terrorism
regime is being implemented.
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Recent Convictions Under Canada's Anti-Terrorism
Laws
by Pamela Shin, B.A., LL.B., and Sean S. Carter, B.A.,
LL.B.
On September 25, 2008, the Ontario Superior Court of Justice,
in R. v. Y.(N.), 2008 WL 4573200 (Ont. S.C.J.), 2008 Carswell
Ont 5964, delivered a verdict convicting an unnamed accused
(N.Y.) of being involved with terrorist activities contrary
to Canada's anti-terrorism provisions adopted in 2001. N.Y.
was arrested on June 3, 2006, along with 14 adults and three
youths. N.Y. was charged with knowingly participating in or
contributing to the activity of a terrorist group between
March 1, 2005 and June 2, 2006, contrary to section 83.18
of the Criminal Code. In addition, on October 29, 2008, Justice
Rutherford of the Ontario Superior Court of Justice convicted
Mohammad Momin Khawaja of breaching several anti-terrorism
provisions of the Criminal Code. Mr. Khawaja previously challenged
and had struck down a portion of the definition of "terrorist
activity" in the Criminal Code. For further information
on this case, see Anti-terrorism and Charity Alert No.
11.
A summary of these recent convictions
and their significance for charities and not-for-profit organizations
will be discussed in a forthcoming Anti-Terrorism and Charity
Law Alert.
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Human Rights Regime Change in Ontario:
What Charities Should Know by
Terrance S. Carter, assisted by Pamela Shin.
Charity Law Bulletin
No.144, Sep 25, 2008
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Recent Report on How the "War
on Terror" Hurts Charities and the People They Serve
by Terrance S. Carter and Sean S. Carter.
On July 14, 2008, two prominent non-governmental
organizations released a report on the impact of the "war
on terror" on the U.S. non-profit community. The report,
entitled "Collateral Damage: How the War on Terror Hurts
Charities, Foundations, and the People They Serve", is
a joint project of OMB Watch and Grantmakers Without Borders.
The report finds that the U.S. government views non-profit
organizations as potential "conduits for terrorist funding
and a breeding ground for aggressive dissent." The report
also indicates that the U.S. non-profit community "operates
in fear of what may spark [the U.S. government] to use its
power to shut them down."
The report details examples of the
struggles facing non-profits in the U.S. in the face of compliance
with anti-terrorism laws, especially those operating internationally.
These compliance issues have forced non-profits to withdraw
from programs overseas and be put in situations where they
would have to violate the standards of neutrality in humanitarian
work in order to comply with U.S. laws and regulations.
Canadian non-profit organizations and
charities need to take careful note of the U.S. regulatory
and enforcement regimes, especially those that have programs,
affiliates or transfer money outside of Canada. The unprecedented
international information sharing regime that have been put
in place since 2001 means that suspicions and allegations
from foreign governments can have serious consequences for
non-profits and charities based in Canada. In addition, U.S.
terrorist financing policies that target non-profit organizations
are often adopted as the international standard in the area
and end up being the benchmark for Canadian regulation and
enforcement.
For further information
concerning the impact of U.S.
policy on Canadian charities and non-profit organizations,
see
Anti-Terrorism and Charity Law Alert No.5
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The Law Society's New "Know Your
Client" Requirements Approved as Part of Anti-Terrorism
Initiative by Terrance S. Carter,
assisted by Sean S. Carter.
The Law Society of Upper Canada's governing
board approved amendments to By-Law 7.1 [Operational Obligations
and Responsibilities] on April 24, 2008, to establish client
identification and verification regulations for Ontario's
lawyers in relation to the anti-terrorism initiative of the
federal government. These amendments, effective October 31,
2008, require lawyers to identify and verify the identity
of clients in certain circumstances.
The client identification requirements
stipulate that lawyers, once they are retained by their client,
must obtain certain basic information, such as the client's
name, address, telephone number and occupation. Additional
information for the identification of organizational clients
is required. The more rigorous client verification requirements
will be triggered when a lawyer receives, pays or transfers
funds on behalf of a client when the funds are not paid to
a lawyer by a financial institution, public body or company,
or received from the trust account of another lawyer. The
type of documentation required to verify the identity of a
client in this situation includes a driver's license, birth
certificate or passport for an individual client and articles
of incorporation or a partnership agreement for an organizational
client. The amendments also require legal counsel to keep
a record of the information and documents obtained, which
would be available to the Law Society to ensure compliance.
These amendments have been adopted
in the shadow of more onerous and controversial client identification
and record keeping requirements that will encompass the legal
profession that were issued as draft regulations in June 2007
by the Minister of Finance as part of the federal government
initiative to fight terrorism. These regulations are set to
come into force in December 2008, and will impact those lawyers
who might, on occasion, be asked by a charity to assist in
transferring monies received from the charity as cash through
means of the lawyer's trust account to another organization.
For further information
about the draft regulations, see
Anti-Terrorism and Charity Law Alert No.14
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First Canadian Non-Profit Added To
Terrorism List by Terrance S.
Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.15 June 25, 2008
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Canadian Privacy Legislation Requires
Consent: U.S. Anti-Terrorism Legislation Takes Away Consent
by U. Shen Goh.
Canadian Privacy Law
Review, Volume 5 No. 7, June 2008.
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Canadian Fundraiser eNews
included a link to a paper presented by Terrance S. Carter
at the University of Iowa Provost's Forum on International
Affairs entitled "The Impact of Anti-terrorism Legislation
on Charities in Canada: The Need for Balance."
Canadian Fundraiser,
Volume 18 No. 8, April 30, 2008
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University
of Iowa Provost's Forum on International Affairs was
held on the campus of the University of Iowa in Iowa City, and
included a presentation by Terrance S. Carter on "The Impact
of Anti-terrorism Legislation On Charities in Canada: The Need
For Balance."
April 19, 2008
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First
Charge Laid Under Canada's Anti-Terrorism Financing Regime
The first person in Canada to be charged
under Canada's anti-terrorism financing laws was arrested in
New Westminster, British Columbia. The accused, a Toronto area
resident, has been charged with committing an offence under
section 83.03(b) of the Criminal Code, the section that makes
it an offence to provide, or make available property or services
for terrorist purposes. It is alleged that the accused solicited
donations in British Columbia for the World Tamil Movement (WTM),
a humanitarian organization, which the police claim is the leading
Liberation Tigers of Tamil Eelam ("LTTE") front organization
in Canada.
The Canadian government in 2006 designated the LTTE as a 'listed
entity' under the amendments to the Criminal Code brought about
by the Anti-terrorism Act in late 2001. This case represents
the first time formal charges have been laid under Canada's
sweeping and controversial anti-terrorism financing regime.
This case will merit careful attention from charities and not-for-profits,
as it highlights the need to take seriously the impact of anti-terrorism
financing laws on fundraising and operational procedures."
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Canadian Privacy Legislation Requires
Consent; U.S. Anti-Terrorism Legislation Takes Away Consent
by U. Shen Goh.
Charity Law Bulletin
No.128, Nov 29, 2007
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The
Impact of Anti-Terrorism Legislation on Charities in Canada:
The Need for an Appropriate Balance
was presented by Terrance S. Carter to the Commission of Inquiry
into the Investigation of the Bombing of Air India Flight 182
in Ottawa, Ontario.
Power Point
Written Submission
October 26, 2007
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Don't Conscript Lawyers to this War
by Terrance Carter and Sean Carter.
The Lawyers Weekly,
Vol. 27 No. 15, August 24, 2007
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'Closing the Gaps': New Draft Regulations
Bring Lawyers Under the Purview of Terrorist Financing Laws
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.14 July 31, 2007
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Major Changes to Anti-terrorism Laws
Recommended by House of Commons Subcommittee Report
by Sean S. Carter and Terrance S. Carter.
Charitable Thoughts,
Volume 10 No. 4, June 2007
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International Commission of Jurists'
Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human
Rights included a presentation at
the Canadian Hearings by Terrance S. Carter entitled "Canadian
Charities: The Forgotten Victims of Canada’s Anti-Terrorism
Legislation."
April 24, 2007
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Anti-Terrorism Report: Recognizes draconian
legislation's deleterious effect on charities by
Sean S. Carter and Terrance S. Carter.
Canadian Fundraiser,
Volume 17 No. 7, April 15, 2007
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Major Changes to Anti-terrorism Laws
Recommended by House of Commons Subcommittee Report
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.13 April 18, 2007
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House of Commons Subcommittee Report
on the Anti-Terrorism Act recommends Major Changes
Anti-terrorism Laws Concerning Charities
The House of Commons Subcommittee on the Review of the Anti-terrorism
Act ("House Subcommittee") issued its final
report, as mandated by the Anti-Terrorism Act ("ATA"),
on March 27, 2007. Among the report's recommendations are
substantial changes to the Charities Registration (Security
Information) Act ("Act"), legislation that was
overhauled by the ATA. The recommended changes directly impacting
charities are focused on reforming the process of issuing
a 'certificate' pursuant to the Act, which is essentially
the deregistration of a charity. These changes include:
a) the addition of a 'Due Diligence'
defence for charities facing deregistration under the Act
b) the creation of Canadian 'Best Practice Guidelines' to
assist charities in their due diligence assessments
c) the inclusion of a knowledge requirement in relevant
sections of the Act to establish a clear mens rea requirement.
The House Subcommittee report is a
substantial departure from a Senate Subcommittee report, also
on the ATA, that was released earlier this year. The Senate
report, though recognizing many of the same problems with
the Act as the House Subcommittee, recommended very little
change to the substance of the Act. It remains to be seen
what the ultimate impact of the House Subcommittee's recommendations
will be and whether these recommendations will translate into
any legislative or regulatory changes. However, the House
Subcommittee report does represent a substantial step forward
in recognizing that Canada's existing anti-terrorism legislation
can have a considerable negative impact on charities and that,
as a result, significant change needs to be made to this legislation.
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Supreme
Court strikes down security certificates
In a unanimous decision of the Supreme Court of Canada on February
23, 2007, Canada’s controversial procedure for determining
the reasonableness of security certificates and the detention
review procedure, the substance of which has been a fixture
in immigration law for well over a decade, and which predates
the bulk of Canada’s anti-terrorism legislation enacted
since the fall of 2001, was held to contravene the Canadian
Charter of Rights and Freedoms. In making this decision,
Chief Beverly McLachlin, writing for the Court in Charkaoui
v. Canada (Citizenship and Immigration), 2007 SCC 9 (“Charkaoui”),
confirmed that “the right to a fair hearing comprises the
right to a hearing before an independent and impartial magistrate
who must decide on the facts and the law, the right to know
the case put against one, and the right to answer that case.”
But the secrecy required by the certificate and detention review
was found to deny the person named in a certificate the opportunity
to know the case put against him or her, and hence to challenge
the government’s case. Although the procedure for the judicial
approval of certificates was held to be of no force or effect,
the Court suspended the declaration for one year in order to
provide the federal government the opportunity to respond.
The Charkaoui decision is a promising condemnation
of the government’s anti-terror laws and may provide
some hope for charities that might find themselves facing
a similar process under the Charities Registration Act
(the “Act”), which was enacted under Part VI of
the Anti-terrorism Act. Under this Act, the government
can revoke the charitable status of an existing charity or
deny a new charitable status application if it is determined
that the charity has supported or will support terrorist activity.
Among the many criticisms of the review process under the
Act, is the ability of the government to introduce evidence
which the impugned charity is not able to know or challenge.
Similar to the criticism in Charkaoui, the secrecy
undermines the reviewing judge’s ability to come to a
decision based on all the relevant facts and law. Despite
the promise given in Charkaoui, charities who are exposed
to the Act’s deregistration process will have to wait
for future litigation focused on the Act’s procedures
to see if similar principles of fundamental justice will apply
to an organization’s charitable status as it does to
the detention of individuals.
|
|
Anti-terrorism
law increases burden for charities
by Terrance S. Carter & Sean S. Carter.
Law Times Vol. 18
No. 5 February 5, 2007
|
|
New anti-terrorist financing law has
direct impact for charities by
Terrance S. Carter and Sean S. Carter.
Bar-Ex.com, February
2, 2007
|
|
New Anti-Terrorist Financing Law has
Direct Impact for Charities
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.12 January 24, 2007
|
|
Khawaja Decision Affords Little
Relief for Charities by Terrance
S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.11 December 20, 2006
|
|
Khawaja Does Not Adequately
Protect Charities by Terrance
S. Carter and Sean S. Carter.
The Lawyers Weekly,
Vol. 26 No. 29 December 1, 2006
|
|
Canadian Charities: The Forgotten Victims
of Canada's Anti-terrorism Legislation
by Terrance S. Carter.
International Journal
of Civil Society Law, Volume IV Iss. 4, October 2006.
|
|
The
Impact of Anti-terrorism Legislation on Charities
was presented by Terrance S. Carter for the University of Ottawa
course "Introduction to the Law of Charities and Non-Profit
Organizations."
October 30, 2006
|
|
Judge Strikes Down Motive Requirement
from Anti-Terrorism Legislation
Ontario's Superior Court of Justice decision in R. v. Khawaja
strikes down a portion of the definition of "terrorist
activity" in Canada's Criminal Code on the grounds
that it infringed Charter rights. However, the ruling
has had the negative effect of actually broadening the definition
of "terrorist activity," by reducing the elements
the Crown must prove. An Anti-terrorism and Charity Law
Alert discussing the decision is forthcominge.
October 26, 2006
|
|
Interim Report on Anti-terrorism Act
Issued The Standing Committee
on Public Safety and National Security has recommended that
two clauses contained in Canada's Anti-terrorism Act that
were to expire on December 31, 2006, should be extended for
a further five years, and subjected to another review at that
time. The clauses deal with investigative hearings and preventative
detentions. The committee also recommended that the investigative
hearing clause be amended so that it could only be used "when
there is imminent peril that a terrorist offence will be committed."
Two members of the committee submitted a dissident opinion,
suggesting that the clauses should only be renewed for three
years. The two dissidents agreed with the amendment to the
investigative hearing clause. A final report is required to
be tabled no later than December 22, 2006. A copy of the interim
report is available on the House of Commons website.
October 23, 2006
|
|
New Anti-Terrorism Legislation Introduced
That Gives Increased Powers to Government Agencies to Investigate
Charities and Exempts Lawyers from Reporting Obligations
The Minister of Finance introduced Bill C-25 "An Act
to amend the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act and the Income Tax Act and to make a consequential
amendment to another Act" in the House of Commons.
Some of the most important proposed amendments in Bill C-25
that are applicable to charities and their legal counsel are
amendments that would:
1) Bolster client identification, record-keeping and reporting
measures applicable to financial institutions and intermediaries.
2) Allow the Financial Transactions and Reports Analysis Centre
of Canada ("FINTRAC") to disclose additional information
to law enforcement and intelligence agencies, and to make
disclosures to additional agencies.
3) Allow the Canada Revenue Agency to disclose to the FINTRAC,
the Royal Canadian Mounted Police and the Canadian Security
Intelligence Service information about charities suspected
of being involved in terrorist financing activities.
4) Exempt lawyers from reporting obligations under the "Proceeds
of Crime (Money Laundering) and Terrorist Financing Act."
The exemption of lawyers from reporting
obligations is the result of over four years of litigation
and negotiation by the Federation of Law Societies and the
federal government. The Federation of Law Societies will likely
reach an accord within the next few months to agree to voluntarily
undertake professional standards to combat money laundering
and terrorist financing.
These proposed amendments would greatly
increase the level of information sharing and collection among
virtually all federal agencies that would potentially investigate
or bring allegations and charges against charities and their
directors and officers. These proposed changes highlight the
increasing focus and investigation of charities and their
possible links to terrorism. Bill C-25 is one of the more
substantive pieces of anti-terrorism legislation to be tabled
in some time and is worthy of close scrutiny as it makes its
way towards becoming law.
October 5, 2006
|
|
Canadian Charities: The Forgotten Victims
of Canada’s Anti-Terrorism Legislation
by Terrance S. Carter, assisted by Nancy E. Claridge and Sean
S. Carter.
Anti-Terrorism and
Charity Law Alert No.10 September 20, 2006
|
|
Unprecedented Anti-Terrorism
Due Diligence Standards Emerge For Charities Internationally
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.9 July 17, 2006
|
|
Carters is pleased to
announce that Jeremiah Eastman has joined the firm from
Justice Canada, and we're expanding our practice.
Mr. Eastman will be practicing at our NEW Mississauga office
and will join our immigration, anti-terrorism and litigation
practice groups.
See the announcement
for more details.
July 1, 2006
|
|
The What, Where and
When of Anti-Terrorism Legislation
presented by Terrance S. Carter at the 4th National Symposium
on Charity Law hosted by The Canadian Bar Association –
Continuing Legal Education in Toronto, Ontario.
May 11,2006
|
|
Tamil
Tigers are latest addition to Canada's "listed entities"
On April 8, 2006 the Liberation
Tigers of Tamil Eelam (LTTE), a.k.a. the Tamil Tigers, were
added to Canada's "Listed Entities."
April 8, 2006
|
|
U.K.'s
new Counterterrorism Legislation receives Royal Assent
The fourth major addition to the U.K.'s counterterrorism legislative
package since the September 11, 2001 attacks on the U.S. received
Royal Assent on March 30, 2006. The Terrorism Act 2006,
among other things, creates the new offence of "encouragement"
or "glorification" of terrorism, and provides law enforcement
authorities the ability to detain terror suspects without charge
for a period of 28 days, up from the previous fourteen days.
Prime Minister Tony Blair's Labour government originally proposed
a 90-day detention period, a measure that led to the Labour
government's first defeat in the House of Commons since coming
to power. The Act has received significant criticism for its
potential abuse of the U.K.'s human rights obligations. For
a discussion on the draft legislation and its impact on Canadian
counterterrorism efforts, see Anti-Terrorism and Charity
Law Alert No. 8 (20 October 2005).
March 30, 2006
|
|
New
United Kingdom Terrorism Bill and its Implications for Canada
by Terrance S. Carter, assisted by Nancy E. Claridge.
Anti-Terrorism and
Charity Law Alert No.8
|
October
20, 2005 |
|
|
The Impact
of Anti-Terrorism Legislation on Charities: The Shadow of the
Law by Terrance S. Carter, Carter
& Associates. |
September
27, 2005 |
|
|
The Three
Year Review of C-36 Anti-Terrorism Act: The Ongoing Consequences
and Impact for Canadian Charities
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.7
|
July
21, 2005 |
|
|
Visit www.antiterrorismlaw.ca
for the latest updates and resources, including:
| - |
additions to Canada's listed entities
on May 24, 2005, that charities and non-profits need to
be aware of, |
| - |
submissions from the Canadian
Bar Association, International Civil Liberties Monitoring
Group, and the Canadian Association of University Teachers
regarding the review of Canada's Anti-terrorism Act, and |
| - |
a link to the "Handbook on
Counter-Terrorism Measures: What U.S. Non Profits and
Grantmakers Need to Know " produced by Foundation
Coalitions, one of the most important publications to
come out of the U.S. on this topic in the last year. |
|
May 2005 |
|
|
Handbook on Counter-terrorism
Measures: What U.S. Non-profits and Grantmakers need to know |
May
2005 |
|
|
Canadian
Bar Association Submission on the Three Year Review of the Anti-terrorism
Act Terrance Carter is a member
of the CBA committee that authored the section of the report
dealing with the impact of this legislation on charities
|
May
2005 |
|
|
Canadian
Fundraiser eNews coverage of the Imagine Canada Symposium at
which Terrance Carter was a panelist discussing the impact on
philanthropy of the Tsunami disaster.
Canadian Fundraiser
Vol. 15 No.7
|
April
15,
2005 |
|
|
Anti-terrorism
legislation requires due diligence from tsunami relief agencies
by Terrance S. Carter and Sean S. Carter.
The Lawyers Weekly
Vol. 24 No.41
|
March
11, 2005 |
|
|
Federal
Minister of Justice Provides Insight on Canada's Anti-terrorism
Act
The honourable Irwin Cotler, Minister
of Justice and Attorney General of Canada appeared before the
special committee of the senate on the anti-terrorism act on
Monday, February 21, 2005, and outlined the foundational principles
that underpin our anti-terrorism law. |
March
10, 2005 |
|
|
The Implications
for Charities of Anti-Terrorism Initiatives on Humanitarian
Assistance for Southeast Asia
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.6
|
Jan.
11, 2005 |
|
|
The
Philanthropist recently published
the second part of“Charities and Compliance with Anti-Terrorism
Legislation: A Due Diligence Response by Terrance S. Carter.
The Philanthropist
Vol. 19 No. 2
|
|
|
|
Emerging
International Information Collection and Sharing Regimes: The
Consequences for Canadian Charities,
by Terrance S. Carter and Sean S. Carter.
The International Journal
of Not-for-Profit Law, Vol. 7 Issue 1
|
Nov.
2004 |
|
|
Worldwide
Implications of America’s Emerging Policies Concerning
NGOs, Non-Profits and Charities
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.5
|
Nov.
30, 2004 |
|
|
New York
University School of Law, National Center on Philanthropy and
the Law Conference
| |
"Charities and Compliance
with Anti-Terrorism Legislation: The Shadow of the Law;"
and
"Diversions of Charitable
Assets: Crimes and Punishments in Canada."
|
|
October
28-29, 2004 |
|
|
Emerging
International Information Collection and Sharing Regimes: the
Consequences for Canadian Charities
by Terrance S. Carter and Sean S. Carter.
Anti-Terrorism and
Charity Law Alert No.4
|
September
28,
2004 |
|
|
Anti-terrorism
Due Diligence Search Service for Charities and Non-Profit Corporations.
Carter & Associates is now providing
a due diligence search service on the practices of your organization
and involved individuals in relation to the facilitation, funding
or association with identified entities in order to comply with
anti-terrorism legislation in Canada and other jurisdictions.
For more information please contact tcarter@carters.ca
|
June,
2004 |
|
|
Charities
and Compliance with Anti-Terrorism Legislation in Canada: The
Shadow of the Law by Terrance S.
Carter. The International Journal
of Not-for-Profit Law Vol. 6 No.3 |
June,
2004 |
|
|
|
Parliamentary
Library of Australia lists Carter
& Associates as a key resource in its online reference tools
under anti-terrorism law in Canada. |
June,
2004 |
|
|
Charities
and Compliance with Anti-Terrorism Legislation: The Shadow Of
The Law presented by Terrance S.
Carter at the ONTARIO JUSTICE EDUCATION NETWORK: SUMMER LAW
INSTITUTE in Toronto. |
August
27-28,
2004 |
Paper
Presentation |
|
“Combating the
Abuse of Non-Profit Organizations” Summary and Commentary
of a Document Issued by the Financial Action Task Force on
Money Laundering on October 11, 2002 by
Terrance S. Carter and Benjamin S. Hutchinson
Anti-terrorism and Charity Law Alert
No. 3
|
August
20,
2003 |
|
|
"U.K.
anti-terrorism policy has implications for Canadian charities"
by Sean S. Carter
and R. Johanna Blom was published in The Lawyers Weekly.
|
June
20,
2003 |
|
|
|
The
Perception and Interpretation Burden: The Charity Commission
of England and Wales Policy on Charities and Their Alleged Links
to Terrorism
Anti-terrorism and Charity Law Alert No.
2
|
April
30,
2003 |
|
|
|
Charities
and Compliance with Anti-terrorism Legislation
A detailed paper and handout as presented by Terrance Carter
at the Law Society of Upper Canada 2002 Estates and Trusts Forum.
|
November
20,
2002 |
Paper
Handout |
|
|
Chill
Effect of Anti-terrorism Laws on Churches & Religious Charities:
What to Do in Response
Presented by Terrance S. Carter at the
Church & the Law Seminar |
November
5,
2002 |
|
|
|
The
2002 Annual Church & the Law Seminar
Presentation Materials Now Available! |
November
5,
2002 |
|
|
|
Anti-Terrorism
Legislation in Canada and its Impact On Charities: An Overview
Presented by Terrance Carter at the Ontario Bar Association
Course on Issues in Charity Law.
|
October
22,
2002 |
|
|
|
Reaction
to Future Directions proposals of Canada Customs & Revenue
Agency Terrance Carter's comments
excerpted from Canadian FundRaiser, Vol 12, No 19 |
October
15,
2002 |
|
|
|
The
Impact of Anti-terrorism Legislation on Charities In Canada
Power Point presentation by Terrance S.
Carter, B.A., LL.B., at the Christian Legal Fellowship (CLF)
Annual Conference in Banff, Alberta,October
5th, 2002. |
October
5,
2002 |
|
|
|
Law
may inadvertently draw innocent causes within its maw as suspect
causes include environmental groups
by Terrance S. Carter published in Canadian FundRaiser
|
September
30,
2002 |
|
|
|
Recent
CCRA Newsletter Addresses Impact of Anti-Terrorism Legislation
Charity Law Bulletin No. 16
|
September
20,
2002 |
|
|
|
'Ideological'
terrorist definition may affect charities
by Terrance S. Carter published in Lawyers Weekly |
September
13,
2002 |
|
|
|
First
Issue of the NEW Anti-Terrorism and Charity Law ALERT - "Ideological
Purpose" in Terrorist Definition Impacts Environmental
and Animal Rights Groups |
July
31,
2002 |
|
|
|
Charities face risks from
wave of new anti-terrorism laws - Lawyers
Weekly |
July
12,
2002 |
|
|
|
Update on the Coming Into
Force of Bill C-35, The Introduction of Bill C-55, and Regulations
Under the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act - Charity Law Bulletin No.14
|
June
25,
2002 |
|
|
|
Charities need to comply
with Anti- Terrorism Act - Lawyers Weekly |
April
5,
2002 |
|
|
|
An Overview of the Impact
of the Anti-terrorism Act (Bill C-36) on Charities: Toward Developing
a Due Diligence Response - Presented for
the Canadian Council for International Co-operation |
March
7,
2002 |
|
|
|
Update on the Anti-Terrorism
Act (Bill C-36): Developing a Due Diligence Response -
Charity Law Bulletin No.12 |
March
7,
2002 |
|
|
|
The Impact of the Anti-Terrorism
Act (Bill C-36) Upon Charities: A Legal Risk Management Approach
- Presented for the Canadian Council for
International Co-operation |
January
21,
2002 |
|
|
|
Bill C-36 changes of little
benefit to charities, OBA advised- Lawyers
Weekly |
December
14,
2001 |
|
|
|
Amended Anti-Terrorism Ac
t - Bill C-36 Provides Little Relief to Charities - Charity
Law Bulletin No.11
|
December
13,
2001 |
|
|
|
Anti-Terrorism Legislation
(sec.C.2) in "Pro-Active Protection of
Charitable Assets" A Selective Discussion of Liability Risks
and Pro-Active Responses |
November
20,
2001 |
|
|
|
Charities warned of threats
posed by Bill C-36 - Lawyers Weekly
|
November
16,
2001 |
|
|
|
The Proposed Anti-Terrorism
Legislation (Bill C-36) - Its Impact on Charities -
Charity Law Bulletin No. 10 |
October
25,
2001 |
|
|
|
The Potential Effects
on Charities of Proposed Anti-Terrorism Legislation (Bill C-16)
- Charity Law Bulletin No. 6 |
May
7,
2001 |
|
|
|
|
