Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime

52 Pages Posted: 3 Apr 2016 Last revised: 4 May 2016

Craig Forcese

University of Ottawa - Common Law Section

Kent Roach

University of Toronto - Faculty of Law

Date Written: May 1, 2015

Abstract

Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.

Keywords: terrorism, criminal law, Canada, free speech

Suggested Citation

Forcese, Craig and Roach, Kent, Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime (May 1, 2015). Alberta Law Review, Vol. 53, No. 1, 2015; Ottawa Faculty of Law Working Paper No. 2016-15. Available at SSRN: https://ssrn.com/abstract=2756097

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

Kent Roach

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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