Question Period Note: Criminal Code Terrorist Listings Regime

The Criminal Code list of terrorist entities.

• The listing of terrorist entities under the Criminal Code is an important tool in the fight against terrorism and sends a strong message that Canada will not tolerate such acts of violence.

• To be listed under the Criminal Code, an individual or group must meet the legal threshold, which is reasonable grounds to believe that an entity has knowingly participated in, or facilitated a terrorist activity; or has knowingly acted on behalf of, at the direction of, or in association with such an entity.

• Once listed, an entity falls within the definition of a “terrorist group” in the Criminal Code. This can render certain terrorism-related offences applicable and help to support possible criminal investigations and prosecutions of those offences.

• Furthermore, when an entity is placed on the list, banks and financial institutions freeze its assets and it is a crime to knowingly deal with the assets of a listed entity.

• There are currently 60 entities listed. Most recently, in June 2019, Canada, for the first time, added two right-wing extremist groups to the list: Blood & Honour and Combat 18. Three groups supported by Iran were also included on the list.

The Criminal Code sets out a terrorist listing regime to help prevent the use of Canada’s financial system to further terrorist activity, and to assist in the investigation and prosecution of terrorist offences. Listing an entity carries significant consequences. Banks and financial institutions must freeze all the assets of a listed terrorist entity. Listing prohibits all persons in Canada, as well as Canadians abroad, from knowingly dealing with such assets.

The Minister of Public Safety and Emergency Preparedness may recommend to the Governor in Council (GiC) that entities be officially designated as ‘terrorist entities’ pursuant to s. 83.05 (1) of the Criminal Code (Establishment of list) if there are reasonable grounds to believe that an entity:
a) has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or
b) has knowingly acted on behalf of, at the direction of, or in association with, an entity referred to in paragraph (a).

There are currently 60 terrorist entities listed pursuant to the Criminal Code. The last addition to the list occurred in June 2019, when the Government listed, for the first time, two right-wing extremist groups: Blood & Honour and Combat 18. At the same time, Canada also added three groups supported by Iran to the list.

The recommendation to list an entity is based on a security intelligence report prepared by CSIS or Public Safety Canada, or a criminal intelligence report prepared by the RCMP.

There are several safeguards built into the regime to ensure that the Criminal Code listing process is balanced and fair.

First, pursuant to subsection 83.05(8.1) (Review – listed entity), the Minister of Public Safety and Emergency Preparedness must review each listed entity once every five years and make a recommendation to the GiC as to whether there are still reasonable grounds for an entity to remain listed. The review of listed entities follows a process that is similar to the listing of entities.

Second, the Criminal Code provides a process for an entity to challenge its listing. Pursuant to subsection 83.05(2) (Application to Minister), on application in writing by a listed entity, the Minister of Public Safety and Emergency Preparedness shall decide whether there are reasonable grounds to recommend to the GiC that the applicant no longer be a listed entity. Should the Minister decide that the entity remain listed, the listed entity may apply to a judge for a review of the Minister’s decision. To date, the International Relief Fund for the Afflicted and Needy – Canada (IRFAN-Canada) is the only entity to have an application considered for delisting. IRFAN-Canada’s official delisting request was received on October 21, 2016. Following the determination that the entity would remain listed, IRFAN-Canada filed an application with the Federal Court on February 24, 2017, seeking a judicial review of the Minister of Public Safety’s decision not to remove it from the list and to constitutionally challenge the listing regime. In August 2019, IRFAN-Canada notified the Federal Court that it would be abandoning its application following denial of funding from the Court Challenges Program. To date, no notice of abandonment has been filed with the Federal Court.

Although it is not specifically stated in the Criminal Code, pursuant to subsection 31(4) of the Interpretation Act, the Minister of Public Safety and Emergency Preparedness has the authority to recommend to the GiC, at any time, that an entity be removed from the list.

Finally, pursuant to subsection 83.07(1) (Mistaken identity), a group or individual whose name is the same as or similar to a name appearing on the list may apply in writing to the Minister of Public Safety for a certificate stating that it is not that listed entity.

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