Yesterday's Law: Terrorist Group Listing in Canada

22 Pages Posted: 16 Sep 2016 Last revised: 7 Oct 2016

Craig Forcese

University of Ottawa - Common Law Section

Kent Roach

University of Toronto - Faculty of Law

Date Written: September 15, 2016

Abstract

Canada’s approach to proscription differs from that of other Westminster democracies. With a different constitutional tradition, 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 – 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. In many respects, therefore, terrorist group listing is yesterday’s law, sparked by the events on 9/11, but of marginal utility thereafter. There may be reasons of administrative expediency to preserve listing, but the tool is most doubtful when used as a precursor to criminal prosecutions.

Keywords: terrorism,criminal law, proscription,terrorist groups, canada

Suggested Citation

Forcese, Craig and Roach, Kent, Yesterday's Law: Terrorist Group Listing in Canada (September 15, 2016). Ottawa Faculty of Law Working Paper No. 2016-34. Available at SSRN: https://ssrn.com/abstract=2839383 or http://dx.doi.org/10.2139/ssrn.2839383

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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