New National Security Bill C-59 Introduced
On June 20, 2017, the Government of Canada introduced Bill C-59, An Act respecting national security matters (“Bill C-59”). Bill C-59 is currently in first reading at the House of Commons. Of relevance to charities and not-for-profits (“NFPs”) is one of the proposed changes to the Criminal Code (the “Code”). Section 143 of Bill C-59 proposes to replace section 83.221 of the Code, the offense of advocating or promoting terrorism offences, with the offense of counselling commission of terrorism offences. The current section 83.221 was introduced through Bill C-51, Anti-terrorism Act, 2015, and states:
Advocating or promoting commission of terrorism offences
83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
Definitions
(2) The following definitions apply in this section.
communicating has the same meaning as in subsection 319(7). (communiquer)
statements has the same meaning as in subsection 319(7). (déclarations)
The proposed replacement in Bill C-59 would say:
Counselling commission of terrorism offence
83.221 (1) 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.
Application
(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.
This change is intended to clarify the offense, bringing it more in line with the already existing offense of counseling found under section 22 of the Code. In our January 2017 Charity & NFP Law Update, we reported on the Canadian Bar Association’s (“CBA”) response to “Our Security, Our Rights: National Security Green Paper, 2016” issued by the Government of Canada (the “Green Paper”). One of the questions asked in the Green Paper was, “[a]dvocating and promoting the commission of terrorism offences in general is a variation of the existing offence of counselling. Would it be useful to clarify the advocacy offence so that it more clearly resembles counselling?” The CBA response was that s.83.221 should be deleted because the offence is redundant, as the offence of counselling already exists in the Code. Although the Government of Canada chose not to delete the offence, the clarification does make clear that the existing counselling offence and the current advocating or promoting commission of terrorism offences, are intended to be similar.
Impact of Bill C-44 on Proceeds of Crime (Money Laundering) and Terrorist Financing Act
Bill C-44, Budget Implementation Act, 2017, No. 1, discussed in the Legislation Update above, makes a number of technical and substantive amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, along with coordinating amendments to related legislation. Of particular interest to charities and NFPs, Bill C-44 expands the list of disclosure recipients, allowing for Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) to disclose designated information that is has reasonable grounds to suspect would be relevant to threats to the security of Canada to the Department of National Defence and the Canadian Armed Forces. Bill C-44 also expands the list of persons and entities to which record keeping, identification verification and reporting of suspicious transactions and registrations apply to include “trust companies incorporated or formed by or under a provincial Act that are not regulated by a provincial Act”. Under certain circumstances, Bill C-44 also permits FINTRAC to disclose designated information to institutions or agencies of foreign states (including any political subdivisions or territories thereof) or to international organizations with similar powers and duties as FINTRAC’s. While the trust companies provision comes into force on a day to be fixed by the Governor in Council, Bill C-44 is silent concerning the effective date of the other provisions discussed above.