Note[1]
(SEPTEMBER 2018)
(Read 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 facilitating or carrying out a terrorist activity;
3. That (NOA) instructed a person to carry out any activity for the benefit of, at the direction of, or in association with the terrorist group;
4. That (NOA) instructed the person to carry out the activity knowing that it was for the benefit of, at the direction of, or in association with the terrorist group; and
5. That (NOA)’s purpose was to enhance the ability of the terrorist group (or specify) [to carry out or to facilitate] a terrorist activity.
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[4] 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:
That the activity that (NOA) instructed a person to carry out was actually carried out;
(a) That (NOA) instructed a particular person to carry out the activity;
(b) That (NOA) knew the identity of the person s/he instructed;
(c) That the person who was instructed knew that the activity was for the benefit of, at the direction of, or in association with a terrorist group;
(e) That the terrorist group actually facilitated or carried out a terrorist activity;
(f) That the activity actually enhanced the ability of the terrorist group to facilitate or carry out a terrorist activity; or
(g) That (NOA) knew the specific nature of any terrorist activity that may have been facilitated or carried out by the terrorist group.
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.)[5]
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. Read 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[6] 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, 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[7] as terrorist groups.[8] I instruct you as a matter of law that (specify) is a terrorist group. You must go on to the next question.
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 who were the 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 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) instructed a person to carry out the activity of (specify).
The Crown does not have to prove that (NOA) instructed a particular person to carry out the activity, or that (NOA) knew that person’s identity. Nor does the Crown have to prove that the activity was actually carried out, or that the person who was instructed knew that the activity was for the benefit of, at the direction of or in association with a terrorist group.
“Instructed” means directed or commanded.
The instruction may have been given directly or indirectly.
The Crown must prove beyond a reasonable doubt that (NOA) instructed a person to carry out an activity 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 activity 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, was directing the activity
“In association with” the terrorist group means that the activity 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) instructed a person to carry out an activity for the benefit of, at the direction of, or in association with the terrorist group, you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) instructed a person to carry out an activity for the benefit of, at the direction of, or in association with the terrorist group, you must go on to the next question.
The Crown must prove beyond a reasonable doubt one of the following:
1. (NOA) instructed the person to carry out the activity knowing that it was for the benefit of the terrorist group;
2. (NOA) knew that s/he issued the instruction at the direction of the terrorist group, that is, s/he knew 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, was directing the activity; or
3. (NOA) knew that s/he issued the instruction in association with the terrorist group, that is, s/he knew the instruction was linked to the terrorist group and advanced, at least to some degree, its interests.
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 instruction was for the benefit of, at the direction of, or in association with, the terrorist group, but deliberately chose to ignore those indications because s/he did not want to know the truth.
You do not have to be satisfied that (NOA) had all of these states of mind. It is sufficient if you are satisfied beyond a reasonable doubt that (NOA) had at least one of them. You do not all have to agree on which of them (NOA) had, as long as each of you is satisfied beyond a reasonable doubt that (NOA) had at least one of them.
Remember that the Crown does not have to prove that the activity that (NOA) instructed a person to carry out was actually carried out. Nor does the Crown have to prove that the terrorist group actually facilitated or carried out a terrorist activity.
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA) instructed a person to carry out an activity for the benefit of, at the direction of, or in association with the terrorist group, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) instructed a person to carry out an activity for the benefit of, at the direction of, or in association with the terrorist group, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) meant his/her actions to have the effect of enhancing the ability of the terrorist group [to carry out or to facilitate] the terrorist activity. It is not enough that (NOA) knew his/her conduct would have that effect. That effect must have been his/her goal. A person cannot be found guilty of this offence merely for innocent or socially useful conduct carried out without any intention of enhancing the ability of the group [to carry out or to facilitate] terrorist activities.[12]
However, the Crown does not have to prove that the [participation or contribution] of (NOA) would have actually enhanced the ability of the terrorist group to carry out or to facilitate a terrorist activity. Nor does the Crown have to prove that (NOA) knew the specific nature of any terrorist activity that may have been facilitated or carried out by the terrorist group.
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to enhance the ability of the terrorist group (or specify) [to carry out or 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 was to enhance the ability of the terrorist group (or specify) [to carry out or facilitate] a terrorist activity, you must find (NOA) guilty of this charge.
(a) That the activity that (NOA) instructed a person to carry out was actually carried out;
(b) That (NOA) instructed a particular person to carry out the activity;
(c) That (NOA) knew the identity of the person s/he instructed;
(d) That the person who was instructed knew that the activity was for the benefit of, at the direction of, or in association with a terrorist group;
(e) That the terrorist group actually facilitated or carried out a terrorist activity;
(f) That the activity actually enhanced the ability of the terrorist group to facilitate or carry out a terrorist activity; or
(g) That (NOA) knew the specific nature of any terrorist activity that may have been facilitated or carried out by the terrorist group.
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) instructed a person to carry out any activity for the benefit of, at the direction of, or in association with the terrorist group; and
4. That (NOA) instructed the person to carry out the activity knowing that it was for the benefit of, at the direction of, or in association with the terrorist group; and
5. That (NOA)’s purpose was to enhance the ability of the terrorist group (or specify) [to carry out or to facilitate] a terrorist activity.
If any one 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.
You must find (NOA) guilty of this charge if you are satisfied beyond a reasonable doubt of all the following essential elements [and you have no reasonable doubt after considering [specify defences)]:
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) instructed a person to carry out any activity for the benefit of, at the direction of, or in association with the terrorist group; and
4. That (NOA) instructed the person to carry out the activity knowing that it was for the benefit of, at the direction of, or in association with the terrorist group; and
5. That (NOA)’s purpose was to enhance the ability of the terrorist group (or specify) [to carry out or to facilitate] a terrorist activity.
[1] In adapting these instructions for use in a particular case, pay careful attention to the wording of the indictment. Some indictments specify the alleged terrorist activity; some do not. Similarly, some specify a name for the group; some do not. Where either is specified, use the specified terms throughout these instructions.
[2] Follow the wording in the indictment, e.g., “to carry out”, or “to facilitate”, or “to carry out or to facilitate”.
[3] 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.
[4] 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] Note, however, that a “terrorist group” has been held not to include a single, self-radicalized individual: See R. v. Ali, 2018 ONSC 2838.
[6] The elements of “terrorist activity” are summarized in R. v. Khawaja, 2012 SCC 69 at para 25.
[7] 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).
[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.
[12] See R. v. Khawaja, 2012 SCC 69 at paras 45-47. The Court noted that the accused need not have intended a specific terrorist activity, for example, the death of a person from a bombing. All that has to be intended is the enhancement of the terrorist group’s ability to carry out or facilitate a terrorist activity. On the other hand, this heightened mens rea requirement exempts those who unwittingly assist terrorists or do so for a valid reason. For example, a lawyer representing a known terrorist would not come within this provision unless his or her intent was specifically to enable the person to pursue further terrorist activities.