(October 2021)
Note[1]
(Review relevant part of indictment or count.)
1. That there was a terrorist group (if the group is named in the count, then this element should be worded “That there was a group named (specify) and it was a terrorist group”);
2. That (NOA) knew the group (or specify) had as one of its purposes or activities the facilitating or carrying out of a terrorist activity;
3. That (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent to leave Canada];
4. That (NOA)’s purpose was to commit the indictable offence of (specify); and
5. That (NOA) would have committed the offence of (specify) for the benefit of, at the direction of, or in association with the terrorist group.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt of all these 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.
There are two related legal terms that you must apply. The first is “terrorist group”; the second is “terrorist activity”.
A terrorist group is one or more persons that has as one of its purposes or activities facilitating or carrying out any terrorist activity. (In some circumstances, it may be necessary to emphasize that a group can consist of only one person.)[4]
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:
If the Crown alleges a listed group, instruct the jury as follows:
The law authorizes the government to designate certain entities[6] as terrorist groups.[7] I instruct you as a matter of law that (specify) is a terrorist group.
Where the Crown alleges a specific (non-listed) group, give the following instruction:
The Crown must prove the existence of the terrorist group alleged in the indictment beyond a reasonable doubt.
If specific persons are not particularized in the indictment, add:
The Crown need not establish that all of the persons alleged to be members of the terrorist group were actually members. It is sufficient to prove beyond a reasonable doubt that one or more of these persons comprised a terrorist group. You need not agree on which persons were members of the terrorist group.
I remind you that a terrorist group is one or more persons that has as one of its purposes or activities facilitating[8] or carrying out any terrorist activity. (In some circumstances, it may be necessary to emphasize that a group can consist of only one person.) [9] However, the Crown does not have to prove that the group actually facilitated or carried out a terrorist activity.
(If the group is not listed, review relevant evidence of both the existence of the group and its alleged terrorist activity).
Unless you are satisfied beyond a reasonable doubt that there was a terrorist group (or, if the group was named in the count, “that there was a group named (specify), and it was a terrorist group”), you must find (NOA) not guilty of this offence. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that there was a terrorist group (or, if the group was named in the count, “that there was a group named (specify), and it was a terrorist group”), you must go on to the next question.
I have just explained to you what a terrorist group is. You must now ask yourselves whether the Crown has proved beyond a reasonable doubt that (NOA) knew that the group had as one of its purposes or activities facilitating or carrying out a terrorist activity.
However, the Crown does not have to prove that (NOA) knew the specific nature of any terrorist activity that may be facilitated or carried out by the terrorist group.
If there is evidence of wilful blindness, an instruction along the following lines should be given:
(NOA)’s knowledge is also established if the Crown proves beyond a reasonable doubt that s/he was aware of indications that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, but deliberately chose to ignore those indications because s/he did not want to know the truth.
If there is evidence that there was more than one terrorist group, the jury should be instructed that:
Proof that (NOA) knew that a group had as one of its purposes or activities facilitating or carrying out a terrorist activity is sufficient to establish that (NOA) had the requisite knowledge.
You do not all have to agree which group (NOA) knew about. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, you must go on to the next question.
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 commit the offence of (specify).
I instruct you as a matter of law that (specify) is an indictable offence and that the essential elements of that offence are:
(Set out the essential elements of the indictable offence alleged.)
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to commit the indictable offence of (specify), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to commit the indictable offence of (specify), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) would have committed the offence in one or more of the following circumstances:
(i) for the benefit of the terrorist group, or
(ii) at the direction of the terrorist group, or
(iii) in association with the terrorist group.
You do not have to be satisfied that all three of these circumstances are present. It is sufficient if you are satisfied beyond a reasonable doubt that at least one of them is present. You do not all have to agree on which circumstance is present, as long as each of you is satisfied beyond a reasonable doubt that at least one is present.
“For the benefit of” the terrorist group means that the commission of the offence would benefit the terrorist group.
“At the direction of” the terrorist group means that, in some way, the terrorist group itself (including a person who had authority to act on behalf of the terrorist group), not just an individual member looking after his or her own interests, would have directed the commission of the offence.
“In association with” the terrorist group means that the offence was linked to the organization and would advance, at least to some degree, its interests.[11]
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA) would have committed the offence of (specify) for the benefit of, at the direction of, or in association with the terrorist group, you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA) would have committed the offence of (specify) for the benefit of, at the direction of, or in association with the terrorist group, you must find (NOA) guilty.
1. That there was a terrorist group (if the group is named in the count, then this element should be worded “That there was a group named (specify) and it was a terrorist group”); and
2. That (NOA) knew the group (or specify) had as one of its purposes or activities the facilitating or carrying out of a terrorist activity; and
3. That (NOA) left [or attempted to leave] Canada [or attempted to board a conveyance with the intent to leave Canada]; and
4. That (NOA)’s purpose was to commit the indictable offence of (specify); and
5. That (NOA) would have committed the offence of (specify) for the benefit of, at the direction of, or in association with the terrorist group.
If any one of these five 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 all five 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. This instruction assumes that the indictment refers to “for the benefit of”, “at the direction of”, and “in association with”. The instruction will have to be modified if the indictment is worded differently.
[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.
[4] Note, however, that a “terrorist group” has been held not to include a single, self-radicalized individual: See R. v. Ali, 2019 ONCA 1006. The section does not apply to a “lone wolf terrorist” who belongs to no group other than that of which he is the only member.
[5] The elements of “terrorist activity” are summarized in R v Khawaja, 2012 SCC 69 at para 25.
[6] An entity is defined as a person, group, trust, partnership or fund, or an unincorporated association or organization (s. 83.01 (1) of the Criminal Code).
[8] The word “facilitate” has been interpreted to mean “to make it easier” (R v Nuttall, 2018 BCCA 479, at paras 468-469). In some circumstances, it may be necessary to refer also to the matters the Crown does not have to prove in s. 83.19(2). See s. 83.01(2).
[10] This mens rea requirement is based by analogy on the requirement in R. v. Terezakis, 2007 BCCA 384, at para 60 in relation to criminal organizations.
[11] See Offence 467.12, Commission of an offence for the benefit of, at the direction of, or in association with a criminal organization, at para 6.