5.1 National Security

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised November 8, 2017

Table of Contents

1. Introduction

In the Report on the Air India tragedy,Footnote 1 the Honourable John Major summed up succinctly the characteristics of terrorism that distinguish it from other crimes: “Terrorism is an existential threat to Canadian society in a way that murder, assault, robbery and other crimes are not. Terrorists reject and challenge the very foundations of Canadian society.”

Prosecutions with a national security component (e.g., terrorism or espionage) or relating to a war crime or a crime against humanity have both national and international significance. They regularly involve sensitive issues of international relations, national defence and national security, and other important broad-based public interests.

For these reasons, special considerations and policies apply to national security prosecutions.

2. Definition

For the purposes of this guideline, the following are considered national security prosecutions:

3. Pre-Charge Legal Advice

Where Public Prosecution Service of Canada (PPSC) counsel are approached for pre-charge legal advice on a matter falling within the subject matter of this guideline, counsel must advise their Chief Federal Prosecutor (CFP) and the National Terrorism Prosecutions Coordinator that they have been asked to provide legal advice, even if the investigation is in its infancy.

There are understandings in place respecting whether or not a matter will be the responsibility of the Attorney General of Canada or the Attorney General of a province. The understandings contemplate early communication between interested Attorneys General. Any questions about the application of the understandings should be raised with the National Terrorism Prosecutions Coordinator.

In order to commence terrorism proceedings, law enforcement authorities require the consent of the Attorney General.Footnote 8 That consent may be given by the Director of Public Prosecutions (DPP) or a Deputy Director of Public Prosecutions (DDPP).Footnote 9

4. Procedure for Commencement of Charges

Charges for which a consent is sought must meet the charge approval standard in the PPSC Deskbook guideline 2.3 Decision to Prosecute.” Terrorism cases are inherently serious and where the evidentiary standard is met, the public interest will normally be best served by a prosecution. However, each case requires an individual analysis of the factors in the PPSC Deskbook guideline 2.3 Decision to Prosecute.”

4.1 Regional Office

Requests to consent to the commencement of proceedings must be made by the appropriate senior headquarters representative of the concerned law enforcement agency, and must be directed to the DDPP, Drug, National Security and Northern Prosecutions Branch. PPSC Headquarters (HQ) will request a recommendation from the region in which the investigation originated. Crown counsel in the region must ensure that they are in possession of sufficient information, including documentation from the investigative file, to assess the request according to the applicable standard.

The CFP shall ensure the preparation of a legal memorandum addressing the following:

  1. A concise description and analysis of the available evidence, demonstrating how that evidence results in a reasonable prospect of conviction with respect to each accused on each count, and addressing why the public interest is best served by a prosecution. The memorandum must include the names of the accused, the charges, and the date, if any, for which the consent is being requested by the police. The memorandum should highlight the strengths and weaknesses of the case, as well as any significant legal issues expected to be encountered, and any issues of particular importance to the assessment of the public interest;
  2. The degree to which the prosecution may require the disclosure of information that could be injurious to national security, international relations or national defence;
  3. The memorandum should recommend whether the request should be granted;
  4. Copies of witness statements or other key pieces of evidence essential to evaluating the strength of the prosecution’s case; and
  5. Two original informations or indictments containing all charges for which the indictment is requested. Both should be signed in the usual way by the person normally signing indictments in the regional office. Below that, the following should appear:

    I hereby consent to the commencement of proceedings pursuant to section 83.24 of the Criminal Code. Dated at Ottawa, Ontario, this_____ day of _____, _____.

    Deputy Director of Public Prosecutions and pursuant to section 6(3) of the Director of Public Prosecutions Act, a lawful deputy of the Attorney General of Canada.

The CFP shall review the memorandum and, if satisfied that it adequately considers the factors indicated above, send it to the DDPP, Drug, National Security and Northern Prosecutions Branch, with his or her endorsement of the recommendation.

In circumstances where an arrest has been made or is imminent, and time does not permit a structured memorandum, less formal communications may be appropriate, including a combination of written materials and supplementary oral briefings. Cases of extreme and unanticipated urgency may not permit the preparation of any written materials, in which case briefings may be entirely oral. However, any abbreviation is one of form and not of substance. In all cases, the reviewing Crown and the CFP (or designate) must provide their informed assessments of the file. A written record of the information and analysis provided in the briefing must be made by the reviewing Crown as soon after the fact as time permits.

Where a request is made for criminal charges but there is no reasonable prospect of conviction and therefore, the threshold test for commencing proceedings in relation to charges is not met, reviewing counsel shall consider whether there is a reasonable prospect that the threshold set out in law under either s 810.011 or s 83.3 is met.Footnote 10 Counsel shall further advise the police accordingly so that the police may determine whether to seek the consent of the Attorney General to the commencement of an application for a recognizance under one of these provisions.

4.1.1 Procedure in Requests for Recognizances under s 810.011 or s 83.3 of the Code

Where a request is made by the police for a recognizance under s 810.011 or s 83.3 of the Code, reviewing counsel shall follow the same procedures as above, applying the test as to whether there is a reasonable prospect that the threshold set out in law under the applicable provision is met.

4.2 Headquarters

The DDPP conducts an objective assessment of the request to determine whether to consent to proceedings. If consent is granted, requesting counsel must prepare a briefing note to the Attorney General in compliance with s 13 of the DPP Act.Footnote 11

5. Procedural Considerations After Consent to Commencement of Proceedings

For the purposes of prosecution management, all prosecutions to which this section applies are deemed to be Major Cases and the policies contained in the PPSC Deskbook guideline 3.1 Major Case Management apply to these cases.

Prosecuting counsel must keep the DDPP informed of the progress of the file through the National Prosecutions Terrorism Coordinator. Once the trial has been completed, the CFP must also report the outcome to the DDPP.

Where, after a full review of the evidence, Crown counsel concludes that all or some of the charges ought to be withdrawn, stayed or reduced, the Deputy DPP must first be consulted, and a s 13 briefing note prepared with as much time as is reasonably permitted to enable the Attorney General to exercise his or her powers under the DPP Act, should he or she so choose.

Section 13 briefing notes must also be prepared by trial counsel at the following stages of the prosecution:

6. Reporting and Record-Keeping Obligations

Counsel are to advise the National Terrorism Prosecutions Coordinator any time legal advice is being provided in relation to a national security matter, as well as of any developments in relation to ongoing prosecutions.

Each office is required to maintain records indicating when a request from the police is received to consent to commence proceedings in relation to terrorism charges, terrorism peace bonds under s 810.011, or a terrorism recognizance under s 83.3. The record must include the date at which such a request was made. If the police are not requesting our consent but are requesting feedback as to whether or not the threshold has been reached, this should also be recorded.

Furthermore, counsel should obtain an indication from the police as to when, from an operational perspective, they require a decision.

Finally, records should be kept respecting whether or not the brief provided by the police was sufficient to permit counsel to make an assessment, and any steps that were taken in response to the request.

The decision as to whether consent is to be granted is made by the DDPP (see below). Counsel shall ensure that HQ is kept advised so that the DDPP can determine whether any case is ready to be considered for consent. In particular, before providing any advice to law enforcement suggesting that the thresholds have not been met, counsel must consult with PPSC HQ.

7. Sentencing

The terrorism provisions catch a wide variety of conduct, a feature recognized by the Supreme Court of Canada in R v Khawaja.Footnote 12 As in all criminal cases, sentencing is a highly individualized process depending on the particular facts at issue and the circumstances of the offender. Sentences in terrorism cases fall to be decided under the same set of sentencing principles as do other crimes.

However, the Supreme Court also affirmed that, given the seriousness of terrorism offences, denunciation and deterrence, both specific and general, will generally be paramount at the sentencing hearing.

Crown counsel should also be mindful, in assessing the individual factors of their case, that the courts so far have indicated that where offenders who knowingly engage in terrorist activity that is designed to or is likely to result in the indiscriminate killing of innocent human beings, life sentences or sentences exceeding 20 years will generally be appropriate.

As in all cases, there may be exceptional circumstances, such as the cooperation of the offender with the authorities in bringing other terrorists to justice that may warrant a departure from the ordinary sentencing range. Sentencing remains an individualized exercise that takes into account all of the circumstances of the offender and the offence.

7.1 Sentences are Consecutive

Section 83.26 provides that a sentence, other than a life sentence, imposed for an offence under any of ss 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events.

In R v Khawaja, the Supreme Court held that the requirement of s 83.26 is not inconsistent with the totality principle. The fact that sentences of 20 years or more may be imposed more often in terrorism cases attests to the particular gravity of terrorist offences and the moral culpability of those who commit them.Footnote 13

7.2 Delayed Parole Eligibility

Offences covered by this guideline are generally offences for which the court has the power to delay parole eligibility under s 743.6.

Terrorism offences, by operation of s 743.6 (1.2) of the Criminal Code, are presumptively offences to which a delayed parole order is appropriate. PPSC counsel who are of the view that the circumstances may be sufficiently exceptional that the presumption is capable of being rebutted must prepare a written recommendation for consideration by their CFP who, if satisfied that the recommendation is appropriate, will forward it for approval of the DDPP, Drug, National Security and Northern Prosecutions Branch, prior to the matter being addressed in court.

Offences that are not presumptive, for example under ss 4 through 7 of the Crimes Against Humanity and War Crimes Act, are still ordinarily appropriate for application for delayed parole eligibility.

PPSC counsel shall give serious consideration to an application under this section, especially where the offences are serious and exceptional mitigating circumstances are absent.

7.3 Custodial Sentences under the Youth Criminal Justice Act

The Youth Criminal Justice Act (YCJA) applies to any young person charged with a terrorism offence, or subject to a s 810.011 peace bond, or a s 83.3 recognizance. In considering sentencing for a young person who has been convicted of either a terrorism offence or a breach of a terrorism peace bond or recognizance, the YCJA’s provisions regarding the availability of custodial sentences will apply.

1. Section 39(1) YCJA

Section 39(1) YCJA states:

[39] (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless:

  1. the young person has committed a violent offence;
  2. the young person has filed to comply with non-custodial sentences;
  3. the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
  4. in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

For purposes of the Deskbook, the focus is s 39(1), but counsel should note that the YCJA sets out further requirements and considerations before a custodial sentence may be imposed.

2. Breach of Peace Bond

For the young person who has no criminal record, is placed on a s 810.011 recognizance, and is then found guilty of a breach of that recognizance, a custodial sentence will generally not be available for that breach. Section 39(1)(b) provides that a custodial sentence may be imposed if the young person has failed to comply with “non-custodial sentences.” This has been judicially interpreted to mean failure to comply with more than one sentenceFootnote 14 – in other words, multiple breaches of the same non-custodial sentence are not sufficient. The young person must have been found guilty and sentenced to at least two separate non-custodial sentences, which were then breached.

In circumstances where it would be appropriate to do so, in sentencing submissions for breach of a s 810.011 peace bond, counsel should state for the record the reason they are not seeking a custodial sentence. Counsel should also take the position that a new non-custodial sentence should be imposed for the breach, such that if there is a breach of the new sentence the young person would be eligible for a custodial sentence under s 39(1)(b). This places the young person on notice.

The YCJA does not include a specific provision dealing with the breach of a s 810.011 peace bond. In the event of such a breach, s 811 of the Criminal Code applies.Footnote 15

If a young person fails or refuses to enter into such a peace bond, the court can impose any of the sanctions under s 42(2) of the YCJA, except that a custody and supervision order under s 42(2)(n) cannot exceed 30 days.Footnote 16

3. Other Terrorism Offences

A young person, with no criminal record, who is found guilty of a terrorism offence may be eligible for a custodial sentence pursuant to s 39(1)(a) YCJA. This section provides that custodial sentences may be imposed when the young person has committed a violent offence. Violent offence is defined in s 2 YCJA as:

  1. An offence committed by a young person that includes as an element the causing of bodily harm;
  2. An attempt or a threat to commit an offence referred to in paragraph (a); or
  3. An offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Given the broad range of conduct which may be captured by terrorism offences such as facilitation, counsel will have to consider whether the conduct at issue in a particular case fits the definition of violent offence, and be prepared to counter defence arguments that it does not.

Section 39(1)(d) would also generally support a custodial sentence for terrorism offences. It provides that in “exceptional cases,” a custodial sentence may be imposed for an indictable offence where the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

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