Yesterday’s Law: Terrorist Group Listing in Canada

Yesterday’s Law: Terrorist Group Listing in Canada

Kent Roach and Craig Forcese

(2018) 30:2 Terrorism and Political Violence, 259-277

Abstract:

Canada’s approach to proscription differs from that of other Westminster democracies. After the negative example of listing in the October Crisis, 1970 and with the subsequent advent of a constitutional bill of rights, Canada does not ban organizations; instead it penalizes certain forms of conduct, above mere membership, with terrorist groups. “Terrorist groups” include entities listed proactively by the executive, but also entities that meet a functional definition in Canadian criminal law. In practice, the latter, functionally-defined terrorist groups have figured in most terrorism prosecutions—only a few cases have involved listed groups. With the new focus on Daesh (a listed group), that may begin to change. However, executive listing raises unresolved constitutional doubts in Canada, prompting concerns that reliance on proscription may be more trouble than it is worth. Listing has also been used with respect to individuals, but such listings in Canada have already produced false positives, perhaps because of the due process deficits of listing by the executive. In many respects, therefore, terrorist group listing is yesterday’s law, problematic and of marginal utility. There may be reasons of administrative expediency to preserve listing, but the tool is more doubtful when used as a precursor to criminal prosecutions.

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About the Author:

Craig Forcese teaches public international law, national security law, administrative law and constitutional law. He also co-teaches advanced international law and relations at the Norman Paterson School of International Affairs. He also co-organizes and instructs the Canadian component of Georgetown Law’s National Security Crisis Law course and simulation. In 2017, Professor Forcese and Kent Roach received the Canadian Civil Liberties Association Award for Excellence in Public Engagement (“for courage and commitment to human rights, human dignity and freedom”). In 2016, he was named jointly with Professor Kent Roach as among the “Top 25 most Influential in the justice system and legal profession” by Canadian Lawyer Magazine. In response to their work on national security law, Craig and Kent also received the Canadian Law and Society Association Book Prize (for their book False Security) and the Reg Robson Award (given annually by the BC Civil Liberties Association “to honour a community member who has demonstrated a substantial and long-lasting contribution to the cause of civil liberties in B.C. and Canada”). Professor Forcese was inducted as a member of the uOttawa Common Law Honour Society in 2016.

 

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