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 June 22, 2021 

Table of Contents

1. Introduction

National security prosecutions focus on the security of Canadian society. This notion of security has several facets. Its core element is to protect Canadians from physical harm. It also includes protecting Canadians' sense of well-being, both at home and abroad. Inherent to this well-being is the safeguarding of fundamental rights and freedoms. Another facet of this notion of security is the maintenance of the public institutions of Canadian society.

National security prosecutions have both a national and international significance, whether they involve terrorism, espionage, war crimes, or crimes against humanity. They regularly involve sensitive issues of international relations, national defence and national security, and information associated with those interests.

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

1.1 Terrorism Offences

The preamble of the Anti-Terrorism Act stresses that an effective response to terrorism goes hand-in-hand with a continued commitment to the values and safeguards enshrined in the Canadian Charter of Rights and Freedoms. Indeed, it is the guarantee of the exercise of the freedom of expression, religion and political activity that underscores the existential dimension of the harm to Canadian values wrought by someone who seeks to justify advancing political, ideological or religious beliefs through the use of violence.

Parliament has chosen to address terrorism offences as crimes.Footnote 8 The rule of law and the rights and freedoms enshrined in the Charter apply to these offences. They govern police investigative procedures as well as the rights available to an accused person before the courts during the trial and, if convicted, on sentence. Terrorism offences are prosecuted in ordinary criminal courts; the Crown must prove the offences to the same standard of proof as other crimes, namely, proof beyond a reasonable doubt based upon admissible evidence. The accused has the same rights regarding choosing the mode of trial, including trial by judge and jury, as for other crimes.

Terrorism often involves large scale attacks targeting victims indiscriminately. The planning cycle for the commission of terrorism offences may be long or short-term. Perpetrators are often, though not always, motivated by non-financial considerations and are willing to suffer personal consequences to accomplish their purpose. Acts may be planned in conjunction with other persons who share the same political, ideological or religious purposes, objectives or causes, although that is not always the case. Persons involved in these offences may play different roles with varying degrees of involvement and knowledge of the plans and targets. The targets of terrorist activities may be selected based upon opportunities or shifting philosophical priorities. Attacks or threats directed towards public institutions or processes, including political, economic, social and military ones, as well as those that allow Canada to act internationally, are threats to Canadian society as a whole. They seek to undermine the democratic rights and principles that Canadians enjoy through their institutions.

The objective of legislative tools like the terrorism provisions of the Criminal Code is to disrupt these offences at the early stages of planning and preparation. The consequences of a terrorist attack can be particularly dire. They require an early, decisive intervention, but they may also be difficult to evaluate given the nature of the activities.

Acts at early stages of preparation can be subject to multiple interpretations. Some purposes may be difficult to differentiate from innocuous ones without clear indications of the objectives, purposes, causes or intentions of the persons involved. Others may be intimately connected to the exercise of fundamental freedoms such as those related to free expression, free association, political activism or religious beliefs. Terrorism offences do not criminalize holding, disseminating or advocating beliefs, even though they may be abhorrent, distasteful or anti-societal/anarchic. Criminal sanction can only be imposed if these beliefs are combined with a criminal act (actus reus) and the required intent (mens rea) of an offence.

2. Pre-Charge Legal Advice

Prosecutors may be approached to provide pre-charge legal advice in relation to national security matters. When this occurs, prosecutors must inform 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.

When providing legal advice, prosecutors must pay particular attention to the protection of information under ss. 37, 38 and 39 of the Canada Evidence Act. In applications for judicial authorizations, information of a sensitive nature that may not be disclosable must be handled so that issues of confidentiality can be dealt with effectively in subsequent court proceedings. Prosecutors must also be mindful that some sensitive information provided under caveat may not be disclosable at all, including in an affidavit.

3. Commencement of Proceedings

3.1 The Decision to Prosecute Test in the National Security Context

National security prosecutions must meet the charge approval standard of the PPSC Deskbook guideline "2.3 Decision to Prosecute." The threshold for commencement of a prosecution applies without modification to national security offences. Specifically, the public interest criteria cannot affect the assessment of the sufficiency of the evidence. Where the evidentiary standard is met, a prosecution will normally best serve the public interest given that national security cases are inherently serious. However, each case requires an individual analysis of the factors in the PPSC Deskbook guideline "2.3 Decision to Prosecute."

3.2 Deciding which Charges Should Be Laid

One of the common issues in national security prosecutions is deciding which charges should be laid. This decision will often be informed by four considerations: the sensitivity of the information, the assessment of the evidence in light of the rights protected by the Charter, the public interest, and jurisdictional issues.

3.2.1 Sensitive Information

National security prosecutions usually rely on sensitive information whose disclosure could be injurious to national security, international relations or national defence, or could reveal cabinet confidences. As part of the consideration of the reasonable prospect of conviction, prosecutors must conduct extensive consultations with Government of Canada stakeholders, including the Canadian Security Intelligence Service, the Royal Canadian Mounted Police, Global Affairs Canada, the Department of National Defence, and the National Security Group of the Department of Justice.

These consultations are required to ensure that evidence can be used as well as to establish a litigation strategy addressing the timing, extent and manner of disclosures. Prosecutors must consider not only the disclosure of information that will be used as evidence, but also the disclosure of information that will be at issue during pre-trial applications challenging investigative steps such as warrants and other judicial orders. Prosecutors must also consider the disclosure of information relating to the initiation of the criminal investigation and to activities that may have been undertaken before the criminal investigation or in parallel. It may not be possible to arrive at a final determination in regard to disclosure given that some elements will require consultations with departments and agencies who are responsible for protection of the information or other court proceedings such as those pursuant to s. 38 of the CEA.

3.2.2 Assessment of the Evidence in Light of the Rights Protected by the Charter

Prosecutors must assess evidence related to the commission of a terrorism offence in light of the rights and freedoms protected by the Charter. The political, ideological or religious purpose of an act is often an element of a terrorism offence. Section 83.01 of the Criminal Code defines "terrorist activity" either as an offence under one of the enumerated international conventions and protocols, or as an act or omission committed in whole or in part for a political, religious, or ideological purpose, objective, or cause. The second definition is met if the activity was committed completely or in part because of a religious, ideological or political purpose. While the motivation need not be the sole or even primary purpose in relation to the activity, it should be a significant one. Determining whether the purpose is political, ideological or religious, or a combination of one or more of these factors, will depend on the evidence. Trying to particularize how they are in fact combined may not be possible.

The treatment of religious purposes requires particular consideration because of the potential that biases and stereotypes may arise. Prosecutors should not be reluctant to inquire into the religious purpose of an act. While it may be convenient to attempt to characterize all beliefs, objectives or purposes as political or ideological rather than religious, Parliament should be assumed to have been familiar with the judicial considerations of religion when it included it as part of the purpose requirement in the definition. Specifically, there is no basis to confine religious beliefs to mainstream or established orthodox manifestations of any particular religious belief system. While the term religious is not defined in the Criminal Code, the Supreme Court of Canada has dealt with the term religion in the following terms in the context of the exercise of freedom of religion:

To summarize up to this point, our Court's past decisions and the basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.Footnote 9

The Supreme Court therefore focused on the personal choices that individuals make with respect to religious beliefs. It follows that an individual's religious claims may have very little connection to official religious dogma or to the position of religious representatives. The terminology used to describe a religious motivation must be sensitive to the inadvertent effects that too broad a description using terminology that refers to more widely held, non-violent beliefs may cause.

Prosecutors must be mindful, however, about the legitimate expression of beliefs when they assess evidence about the political, ideological or religious purpose of an act. However, violent acts, including threats of violence, are clearly excluded from the ambit of s. 2 of the Charter.

Prosecutors must be guided by the interpretative provision enacted at the time of the adoption of the amendments to Part II.1 of Criminal Code in the Anti-Terrorism Act, 2001. Specifically, s. 83.01 (1.1) provides that:

(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition terrorist activity in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.

The preamble to the Anti-Terrorism Act highlights that the provisions are to be interpreted in a manner that continues "[t]o respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms." Significant among those rights and freedoms are those guaranteed in s. 2 of the Charter, namely,

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Prosecutors must make a deliberate effort to adequately take into account the possible legitimate exercise of these rights. This may include the thoughts, beliefs, or opinions held or expressed by the accused or by persons alleged to be associated with the accused. A description or characterization of the motivational component of a terrorism offence can inadvertently result in an implicit association with an established ideological, political or religious school of thought or belief. Such an association may negatively affect other persons who share the underlying motivation but condemn any criminal acts and attempts to condone them.

3.2.3 Public Interest

Prosecutors must consider the public interest when deciding which charges should be laid. The choice of charges is sometimes binary: it could either be prosecuted with a national security lens or be prosecuted without such a lens, by applying other Criminal Code offences. When confronted with this choice, prosecutors must determine which offences should be prosecuted in the public interest. Besides considering which offences are most clearly supported by admissible evidence, prosecutors must also consider the potential impact of particular charges on national security, international relations and national defence. This includes considering to what extent the disclosure required for the prosecution may have a negative impact on those interests.

Prosecutors must also consider which charges appropriately reflect the nature of the conduct and its gravity, denunciation being a particularly relevant consideration for terrorism offences. In the Report on the Air India tragedy, the Honourable John Major summarized the characteristics of terrorism that distinguish it from other crimes. He noted that "[t]errorism 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." Footnote 10 The Supreme Court has affirmed that denunciation and deterrence, both specific and general, will generally be paramount at the sentencing hearing given the seriousness of terrorism offences. Moreover, the attempt to justify or legitimize violent acts by putting a political, ideological or religious gloss over them must be denounced. In other words, prosecutors may underline that the beliefs or purposes in themselves are not criminal even if they are abhorrent, but that the underlying acts are criminal, and are not justified by virtue of the association with a political, ideological or religious belief or purpose.

At the same time, prosecutors should consider if charging a person with a terrorism offence rather than another Criminal Code offence would be counterproductive. Prosecutors must assess if a terrorism offence would unduly or unnecessarily stigmatize the accused in a manner disproportionate to the nature of the conduct, the harm it represents, and the needs of deterrence and denunciation. Prosecutors must also assess if charging the accused with a terrorism offence may victimize the accused's family and their community during the course of the investigation or the trial process, including through stigmatization by association. The nature of the evidence required may be relevant to this consideration. Prosecutors should consider if the alleged offence can be proven with evidence that does not further victimize the family members of the accused, or in a way that helps preserve family or community relationships, which will facilitate the accused's reintegration and rehabilitation after serving their sentence.

3.2.4 Jurisdictional Issues

The choice of charges may raise jurisdictional issues between the Attorney General of Canada and provincial Attorneys General. The Attorney General of Canada has a wide jurisdiction to prosecute national security offences. The Security Offences Act provides the Attorney General of Canada with jurisdiction to prosecute any offence where:

(a) the alleged offence arises out of conduct constituting a threat to the security of Canada within the meaning of the Canadian Security Intelligence Service Act, or

(b) the victim of the alleged offence is an internationally protected person within the meaning of section 2 of the Criminal Code. Footnote 11

In addition, s. 2.3 of the Criminal Code confers concurrent jurisdiction to the Attorney General of Canada in relation to certain Criminal Code offences, including terrorism offences.

Where the conduct under consideration could constitute an offence that is ordinarily or exclusively prosecuted by a provincial Attorney General, however, prosecutors will have to determine if the Attorney General of Canada's jurisdiction should be asserted. For example, the Attorney General of Canada has jurisdiction to prosecute terrorism offences. A terrorism offence includes not only those in Part II.1 of the Criminal Code, but also any other indictable offence that could constitute a terrorist activity. In this way, placing an explosive in a place of public use could not only constitute an offence under s. 431.2 of the Criminal Code, but also constitute a terrorism offence.

Prosecutors should determine if they should seek jurisdiction through a delegation from the Attorney General of the province. Terrorism offences may require proving additional elements that would not be required to establish guilt of the other Criminal Code offence. Prosecutors should consider if the evidence proves these additional elements in any event, even in the absence of any allegation that the conduct constituted a terrorism offence. If that is the case, then prosecutors may consider whether they should seek a delegation from the provincial Attorney General. Such a delegation may also be appropriate when PPSC is already prosecuting other charges within the jurisdiction of the Attorney General of Canada, or when the evidence includes sensitive information that should be handled by prosecutors with established federal relationships and security clearances. Understandings between PPSC and provincial prosecution services are in place to determine if a matter will be the responsibility of the Attorney General of Canada or the Attorney General of a province. These 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.

3.3 Procedure to Obtain Consent to Commence Proceedings

The consent of the Attorney General is required to commence many national security proceedings such as terrorism proceedings.Footnote 12 That consent may be given by the Director of Public Prosecutions (DPP) or a Deputy Director of Public Prosecutions (DDPP).Footnote 13

Requests to obtain consent should be made by the appropriate senior headquarters representative of the concerned law enforcement agency and be directed to a DDPP. Prosecutors must inform their CFP if they anticipate that a police force they are advising will request consent to commence proceedings. Prosecutors, with the approval of their CFP, must also inform the National Prosecutions Terrorism Coordinator.

Once a request is submitted, PPSC Headquarters will request a recommendation from the region in which the investigation originated. Prosecutors in the region must ensure that they possess sufficient information, including documentation from the investigative file, to assess the request according to the applicable standard. Prosecutors must provide their assessment by preparing a memorandum that contains:

  1. The name of each accused, the charges, and the date, if any, for which the police are requesting consent;
  2. A concise description and analysis of the available evidence, an explanation of how the evidence results in a reasonable prospect of conviction with respect to each accused on each count, and addressing why it is in the public interest to prosecute. 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;
  3. An assessment of the degree to which the prosecution may require the disclosure of information that could be injurious to national security, international relations or national defence;
  4. A recommendation on whether the request should be granted;
  5. Copies of witness statements and other key pieces of evidence essential to evaluating the strength of the prosecution's case; and
  6. The Information containing all charges.

The CFP will review the memorandum and, if satisfied that it adequately considers the factors indicated above, endorse the recommendation and send it to a DDPP. The DDPP will conduct an objective assessment of the request. If consent is granted, the requesting prosecutor must prepare a briefing note to the Attorney General in compliance with s. 13 of the DPP Act.Footnote 14 Prosecutors must obtain the consent of the DDPP if they review the evidence and conclude that all or some of the charges should be withdrawn, stayed or reduced.

Less formal communications may be appropriate when an arrest has been made or is imminent and time does not permit a structured memorandum. This may include a combination of written materials and supplementary oral briefings. This may also be done entirely orally in cases of extreme and unanticipated urgency that does not allow the preparation of any written materials. However, any abbreviation is one of form and not of substance. In all cases, the reviewing Crown and the CFP (or their 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 as possible.

Where a request is made to lay criminal charges, but there is no reasonable prospect of conviction and the threshold to commence proceedings is therefore not met, prosecutors should consider if there is nevertheless a reasonable prospect of meeting the threshold for a recognizance under either s. 810.011 or s. 83.3 of the Criminal Code.Footnote 15 If that is the case, prosecutors should inform the police accordingly so that the police can determine if they want to seek the consent of the Attorney General to commence an application for a recognizance under one of these provisions.

Where the police request consent for a recognizance under s. 810.011 or s. 83.3 of the Criminal Code, prosecutors must follow the same procedures as a request to commence proceedings and determine whether there is a reasonable prospect of meeting the threshold for a recognizance under either provision.

4. Management of National Security Prosecutions

All national security prosecutions are deemed to be Major Cases and the policies contained in the PPSC Deskbook guideline "3.1 Major Case Management" apply to them. In addition, national security prosecutions must follow the following reporting and record-keeping obligations.

Prosecutors must ensure that their CFP, the National Terrorism Prosecutions Coordinator and the DDPP are informed of the developments of national security files. Prosecutors must inform their CFP and the National Terrorism Prosecutions Coordinator from the moment they are asked to provide pre-charge legal advice. Prosecutors must keep their CFP informed of the progress of the file in accordance with regional processes and keep the DDPP informed through the National Terrorism Prosecutions Coordinator. Keeping the National Terrorism Prosecutions Coordinator informed of developments in a file is important, notably because it allows the DDPP to determine whether any case is ready to be considered for consent. In particular, prosecutors must consult the National Terrorism Prosecutions Coordinator before providing any advice to law enforcement suggesting that the thresholds have not been met. Once the trial has been completed, the CFP must report the outcome to the DDPP.

Prosecutors must prepare s. 13 briefing notes at several stages of the prosecution to enable the Attorney General to exercise their powers under the DPP Act, should the Attorney General choose to do so. More precisely, prosecutors should prepare a s. 13 briefing note when:

Information about national security prosecutions must be properly recorded. Each office must maintain records about police requests to commence proceedings in relation to terrorism charges or recognizances under either s. 810.011 or s. 83.3 of the Criminal Code, including the date when the request was made. Prosecutors should also confirm with the police when, from an operational perspective, they require a decision, and record this information on the file. Each office should also maintain records about police requests for legal advice regarding thresholds, when the police do not seek consent to commence proceedings but ask for feedback on whether a threshold has been met. Finally, records should be kept respecting whether or not a brief provided by the police was sufficient to permit prosecutors to make an assessment, and any steps that were taken in response to the request.

5. Sentencing

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 national security cases are decided under the same set of sentencing principles as other crimes.

National security prosecutions catch a wide variety of conduct, a feature recognized in respect of terrorism offences by the Supreme Court of Canada in R v Khawaja. The Supreme Court also held, however, that denunciation and deterrence, both specific and general, would generally be paramount at the sentencing hearing given the seriousness of national security offences, including terrorism offences.Footnote 16

Sentencing remains an individualized exercise that takes into account all of the circumstances of the offender and the offence. When assessing the individual factors of a case, prosecutors should note that courts have so far indicated that life sentences or sentences exceeding 20 years will generally be appropriate when offenders knowingly engaged in a terrorist activity that was designed or is likely to result in the indiscriminate killing of innocent human beings. There may be exceptional circumstances warranting a departure from the ordinary sentencing range, such as when the offender cooperated with the authorities to bring other terrorists to justice.

5.1 Consecutive Sentences

Terrorism offences may require consecutive sentences. Section 83.26 of the Criminal Code provides that a sentence imposed for an offence under any of ss. 83.02 to 83.04 and 83.18 to 83.23 must be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events, unless the sentence was one of life imprisonment. 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 17

5.2 Delayed Parole Eligibility

Courts have the power to delay parole eligibility in accordance s. 743.6 of the Criminal Code. Prosecutors should consider presenting an application under this section, especially where the offences are serious and there are no exceptional mitigating circumstances.

Certain national security offences may be subject to a presumption for delayed parole eligibility. Pursuant to s. 743.6 (1.2) of the Criminal Code, terrorism offences are presumed to be offences for which a delayed parole order is appropriate. If a prosecutor is of the view that exceptional circumstances rebut this presumption, they must prepare a written recommendation to their CFP before the matter is addressed in court. If the CFP is satisfied that the recommendation is appropriate, the CFP endorses the recommendation and sends it to the DDPP for approval.Footnote 18

5.3 Sentencing under the Youth Criminal Justice Act

The Youth Criminal Justice Act (YCJA) applies to any young person charged with a terrorism offence or recognizance under s. 810.011 or s. 83.3 of the Criminal Code. In considering sentencing for a young person who has been convicted of either a terrorism offence or a breach of a recognizance, the YCJA's provisions regarding the availability of custodial sentences will apply. Subsection 39(1) of the YCJA states that:

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

(a) the young person has committed a violent offence;

(b) the young person has previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person caused harm, or a risk of harm, to the safety of the public in committing that offence;

(c) 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

(d) 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.

Prosecutors should also note that other provisions of the YCJA set out other requirements and considerations before a custodial sentence may be imposed.

5.3.1 Terrorism Offences

A young person with no record who is found guilty of a terrorism offence may be eligible for a custodial sentence pursuant to s. 39(1)(a) of the 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 of the YCJA as:

Given the broad range of conduct which may be captured by terrorism offences such as facilitation, prosecutors 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.

Paragraph 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 s. 38.

5.3.2 Breach of Recognizance

A custodial sentence will generally not be available when a young person has no record, enters into a s. 810.011 recognizance, and is then found guilty of a breach of that recognizance. 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 sentence – in other words, multiple breaches of the same non-custodial sentence are not sufficient.Footnote 19 The young person must have been found guilty and sentenced to at least two separate non-custodial sentences, which were then breached.

Prosecutors should state for the record the reason why they are not seeking a custodial sentence in their sentencing submissions for the breach of a s. 810.011 recognizance. Prosecutors 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 recognizance under s. 810.011. In the event of such a breach, s. 811 of the Criminal Code applies.Footnote 20

If a young person fails or refuses to enter into a recognizance, the court can impose any of the sanctions under s. 42(2) of the YCJA, but a custody and supervision order under s. 42(2)(n) cannot exceed 30 days.Footnote 21

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