One of the most clearly unconstitutional provisions of C-51 was a Criminal Code amendment that created a new offence of knowingly “advocating or promoting the commission of terrorism offences in general” and a correspondingly broad definition of “terrorist propaganda.” The new offence, which carries a penalty of up to five years in jail, doesn’t even require that the speaker intend that any terrorist act result from the speech in question. It only requires that the speech be made with recklessness as to whether any terrorism offence might result (which is a very low legal standard). Further, the term “terrorism offences in general” is nowhere defined in the Criminal Code, leaving this phrase open to any number of interpretations.
CCLA believes that these Criminal Code provisions are an unjustifiable limit on the Charter’s guarantee of freedom of expression. This is because the prohibited speech – potentially encompassing all private or public statements concerning “terrorism offences in general” – is exceptionally broad in scope, and is far too vague to be a definable category. CCLA was concerned that this created a highly subjective test for courts to apply in determining whether an individual’s speech was promoting terrorist offences “in general”—journalists, for example, were worried that airing a film clip such as the video made by the Parliament Hill shooter in 2015 would fall afoul of the law. There were also concerns about whether these provisions would have a chilling effect on individuals engaged in attempts to prevent and counter terrorism, such as community-based de-radicalization efforts.
C-59 gets rid of the phrase “terrorism offences in general” entirely, and replaces the offence to apply only where a person specifically “counsels another person to commit a terrorism offence.” Counselling offences exist in other places in the law—there is a clearer and more appropriate legal structure surrounding them, and this change limits the risk of uncertainty, overbreadth, or a chilling effect on protected speech. In this one area of C-59, the changes that needed to be made have made it into the new Bill.