Omnibus crime bill receives Royal Assent and impacts anti-terrorism laws

By Christine Duhaime | March 13th, 2012

The Safe Streets and Communities Act, (Bill C-10), also known as the omnibus crime bill received Royal Assent today in Parliament and is significant from an anti-terrorism perspective.

Justice for Victims of Terrorism

Bill C-10 enacts the Justice for Victims of Terrorism Act (the “Act”) which creates a cause of action that allows victims of terrorism to sue natural and legal persons and listed entities for loss or damages suffered as a result of acts or omissions that are punishable under Part II.1 of the Criminal Code (the terrorism offences). It also allows victims to sue foreign states that supported terrorist entities. Claims are available whether the loss occurred inside or outside Canada after January 1, 1985, however, if the loss occurs outside Canada, there must be a real and substantial connection to Canada. The U.S. is the only jurisdiction to have similar legislation.

The Act also suspends certain limitation periods where the victims are incapable of commencing an action because of physical, mental and psychological conditions, or when the victim is unable to ascertain the identity of a perpetrator. Interestingly, the Act hinges significantly on listed entities and their terrorist activities. With respect to prospective defendants, under the Act a defendant is presumed to have committed the terrorist act if the listed entity caused or contributed to the loss or damage and the defendant committed the act for the listed entity.

Bill C-10 also amends the State Immunity Act to create a new exception to state immunity, the general rule that prevents states from being sued in Canada’s domestic courts. The exception serves to remove state immunity only when the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism.

International Transfer of Offenders Act

Bill C-10 also amends the International Transfer of Offenders Act by giving the Minister discretionary powers in deciding whether to approve the repatriation of Canadians incarcerated abroad. Formerly, the legislation required the Minister to consider certain factors in considering a transfer request. Now, the analysis is subjective and gives the Minister the discretion to consider factors such as whether the offender’s return would be a threat to the security of Canada; whether the offender left or remained outside of Canada with the intention to abandon Canada as his or her place of residence; whether the offender has ties to Canada; and whether the foreign prison system presents a threat to the offender’s security or human rights.

Additional discretionary factors have also been added such as whether the offender will endanger public safety; the offender’s health; whether the offender is likely to engage in criminal activity; whether the offender cooperated with law enforcement; whether the offender accepted responsibility for his or her actions; and any other factor the Minister considers relevant. The addition of factors will mean that fewer Canadian offenders will be repatriated, not more.

There is no doubt that these changes will be important for the transfer of persons convicted of terrorism or terrorist financing, and in particular, will likely be relevant with respect to the application for the transfer of Oman Khadr from the U.S. to Canada to complete his sentence for terrorism.

Restriction of Conditional Sentences

Bill C-10 also brings into law amendments to the Criminal Code that fundamentally change important aspects of Canada’s criminal justice system, including amendments to §742.1 which restrict the availability of conditional sentences (i.e., house arrest). Under the amendments, conditional sentences are not available for a person convicted of an offence prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or life (such as treason, mutiny, passport forgery, sedition, piracy, seizure of aircraft, facilitating or enhancing the activities of terrorists and perjury whether by affidavit, oath or declaration) or for certain offences prosecuted by way of indictment for which the maximum term of imprisonment is 10 years (terrorist financing, dealing with terrorist property, providing services in respect of terrorist property that benefits the terrorist group and failure to disclose to CSIS and RCMP the existence of terrorist property).

Conditional sentencing, introduced in September 1996, allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. It is a midway point between incarceration and sanctions such as probation or fines. With the coming into force of Bill C-10, a person convicted of certain serious offences can no longer serve a sentence in the community.

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