(March 2020)
(Read relevant part of indictment or count.)
1. That (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent to leave Canada]; and
2. That (NOA)’s purpose was to commit an act (or omission) outside Canada that s/he knew would facilitate a terrorist activity.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved these two essential elements, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt of these two essential elements [and you have no reasonable doubt[3] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of this charge.
However, the Crown does not have to prove:[4]
(a) That (NOA) knew that a particular terrorist activity would be facilitated;
(b) That any particular terrorist activity was foreseen or planned at the time when it would have been facilitated; or
(c) That any particular terrorist activity would actually be carried out.
To decide this case, you must apply the legal definition of “terrorist activity.”
If the Crown alleges only a terrorist activity listed in s. 83.01(1)(a), instruct the jury as follows and omit the detailed instruction on the definition of terrorist activity in s. 83.01(1)(b)) as set out below.
In this case, the terrorist activity alleged is (specify offence under paragraph (a) of the definition of terrorist activity in s. 83.01(1)). The law authorizes the government to designate certain offences committed in or outside of Canada as terrorist activities. I instruct you as a matter of law that the offence of (name offence listed in s. 83.01(1)(a)) is a terrorist activity.
The following instruction on the definition of “terrorist activity” is merely a summary of the lengthy definition contained in s. 83.01(1)(b). Further instruction will be necessary in particular cases. In all cases, the instruction must be tailored to the indictment and the evidence. In preparing your instructions to the jury, consider the full text of 83.01(1)(b) to ensure that the instruction is appropriate and complete in the circumstances of the case.
In broad terms, a terrorist activity[5] is one that intentionally causes harm in order to intimidate the public for a political [or religious, or ideological] purpose. I will now give you the legal definition of each of these components.
A terrorist activity is an act (or omission) committed in or outside of Canada that intentionally causes (specify one or more of the following: e.g., death, serious bodily harm, danger to life, health or safety, substantial property damage, or serious interference with or disruption of an essential service, etc.).
In addition, the act must be carried out with the intent of either:
(a) intimidating the public [or a segment of the public] with regard to its security; or
(b) compelling a person [or a government, or a domestic or an international organization] in [or outside] Canada to do [or to refrain from doing] something.
The act must also be committed in whole or in part for a political [or religious, or ideological] purpose [or objective, or cause].
To determine whether the Crown has proved the essential elements of this offence, consider the following questions:
The Crown must prove beyond a reasonable doubt that (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent of leaving Canada].
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent of leaving Canada], you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent of leaving Canada], you must go on to the next question.
In determining whether the Crown has proved this essential element beyond a reasonable doubt, you must consider whether (NOA), in leaving [or attempting to leave] Canada [or attempting to board a conveyance with the intent of leaving Canada], did so in order to do something (or omit to do something) that s/he knew would facilitate[6] a terrorist activity.
The Crown must prove beyond a reasonable doubt that (NOA) knew that his/her conduct would have facilitated a terrorist activity. In other words, (NOA) must have been aware of the potential effect of his/her conduct on the terrorist activity.
If there is evidence of wilful blindness, an instruction along the following lines should be given:
(NOA)’s knowing facilitation of a terrorist activity is also established if the Crown proves beyond a reasonable doubt that s/he was aware of indications that his/her conduct would facilitate a terrorist activity, but deliberately chose to ignore those indications because s/he did not want to know the truth.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to commit an act or omission outside Canada that s/he knew would facilitate a terrorist activity, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt that (NOA)’s purpose in leaving or attempting to leave Canada was to commit an act or omission outside Canada that s/he knew would facilitate a terrorist activity, you must find (NOA) guilty of this charge.
(a) That (NOA) knew that a particular terrorist activity would be facilitated;
(b) That any particular terrorist activity was foreseen or planned at the time when it would have been facilitated; or
(c) That any particular terrorist activity would actually be carried out.
1. That (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent to leave Canada]; and
2. That (NOA)’s purpose was to commit an act (or omission outside Canada) that s/he knew would facilitate a terrorist activity.
If either of these essential elements has not been proved beyond a reasonable doubt [or if you have a reasonable doubt with respect to (specify defences)], your verdict must be not guilty.
If you are satisfied that both essential elements have been proved beyond a reasonable doubt, you must find (NOA) guilty.
[1] In adapting these instructions for use in a particular case, pay careful attention to the wording of the indictment.
[2] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.)., [1990] 2 S.C.R. 3.
[3] This instruction will have to be modified where the accused has a legal burden of proof, such as mental disorder and non-insane automatism.
[5] The elements of “terrorist activity” are summarized in R. v. Khawaja, 2012 SCC 69, at para 25.
[6] The word “facilitate” has been interpreted to mean “to make it easier” (R. v. Nuttall, 2018 BCCA 479, at paras 468-469).