Canada (Attorney General) v. Driver, 2016 MBPC 3

CITATION: Canada (Attorney General) v. Driver , 2016 MBPC 3 Date: 2016 01 14 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Canada (Attorney General) ) Ian Mahon ) for the Crown ) and ) ) ) Aaron Daniel Driver ) Leonard Tailleur ) for the Accused ) ) ) ) Reasons for Decision delivered: ) January 14, 2016 ROLSTON P.J. [ 1 ] The authorities identified Aaron Driver as a potential security threat as a result of information received largely based upon his activities on the internet. An investigation followed that lead to an application pursuant to

section 810.011 of the Criminal Code of Canada that Mr. Driver be subjected to a peace bond with conditions. [ 2 ] On June 18, 2015, the Anti-terrorism Act, 2015 amended sections 810.011 and 83.3 of the Criminal Code of Canada into their present form. Mr. Driver contends that the amended legislation offends sections 7, 9, 11(

d) and (

e) and 24 of the Charter of Rights and Freedoms. This case represents the first challenge in Manitoba to sections 810.011 and 83.3 . [ 3 ] Mr. Driver argues that by changing the language of both sections from probability based reasoning to possibility based reasoning, Parliament has created legislation that is arbitrary and indefensible by virtue of being vague and overbroad. Further, Mr. Driver suggests that even if the imposition of a

section 810.011 peace bond is justified, the optional conditions available to the court represent punishment to the person who is the subject of the peace bond and extend beyond what is reasonably necessary to accomplish the goal of preventing terrorism. In that regard, Mr. Driver contends that the

section is overbroad. [ 4 ] The Crown’s position is that the

section is constitutionally sound. While the Crown concedes that a

section 83.3 or 810.011 recognizance does cause a deprivation of liberty to the subject, the preventative nature of the peace bond is not new to Canadian law; the sections clearly define what behaviour will be subject to an order; and the sections are in accordance with the fundamental principles of justice as there is a procedural check in place to ensure fairness in application. [ 5 ] The court will analyse both sections 810.011 and 83.3 of the Criminal Code in light of the arguments presented by counsel in order to determine whether the parameters of the sections, the conditions prescribed by

section 810.011 and the mechanisms for judicial interim release are consistent with the Charter of Rights and Freedoms . In the event that any or all of the sections challenged are inconsistent with Charter values, counsel have agreed that further evidence and arguments will be presented to deal with whether those aspects of the sections are justified by

section 1 of the Charter . The nature of sections 83.3 and 810.011 and what has changed.

[ 6 ] While the Crown’s application in relation to Mr. Driver predates the amendments to the Anti-terrorism Act, 2015 , the transitional provisions allow for the new

section to apply. The transitional component of the amendments has not been contested here. [ 7 ]

Section 810 of the Criminal Code allows for a recognizance to be ordered against a person in order to prevent a breach of the peace. Prior to June 18, 2015, the court could impose an order pursuant to

section 810.01 in circumstances specific to preventing intimidation offences, criminal organization offences and terrorism offences. Amendments to the Anti-terrorism Act, 2015 lead to terrorism offences being dealt with separately under the current

section 810.011. Pursuant to the new section, one may be subject to a recognizance where there are reasonable grounds to fear that that a person may commit a terrorism offence. [ 8 ]

Section 83.3 of the Criminal Code is not a new provision. While

section 810.011 focuses on an individual who may commit the terrorism offence;

section 83.3 focuses on a person who may be instrumental in facilitating terrorism to occur. The

section allows a court to impose a recognizance on an individual where there are reasonable grounds to suspect that terrorist activity may be carried out and that a recognizance being imposed is likely to prevent such terrorist activity from occurring. [ 9 ] In both instances, the major new component that arises from the Anti-terrorism Act, 2015 amendments amount to a change in language from requiring that an informant have a fear that either terrorism acts (section 83.3) or a terrorism offence (section 810.011) will occur to a fear that such may occur. [ 10 ] This change is the basis of the application before the court. Does

section 810.011 offend

section 7 of the Charter ? [ 11 ] Mr. Driver’s position is that the impugned provisions are contrary to several sections of the Charter , specifically sections 7 , 9 and 11(

d) and (e). Sections 7 to 14 of the Charter protect specific legal rights, with

section 7 broadly protecting all those rights globally. Mr. Driver’s arguments focused on

section 7 of the Charter , given that a

section 7 breach would encompass a breach pursuant to the other sections challenged. [ 12 ] Mr. Driver’s position is twofold. Firstly, he argues that the change in language from requiring that a peace bond informant have “reasonable grounds that another person may commit a terrorism offence” from “reasonable grounds that another person will commit a terrorism offence” has changed the standard of proof required to engage the peace bond provision which results in a vague and overbroad application. Secondly, Mr. Driver contends that the conditions contemplated by

section 810.011 are overbroad in their application as they are punitive in nature and there is no rational connection between the behaviour to be prevented and the condition being imposed. 1. Is

section 7 triggered? [ 13 ]

Section 7 of the Charter states: Everyone has the right to life, liberty, and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice. [ 14 ]

Section 7 is comprised of two elements: a “right to life, liberty and security of the person”, and the “right not to be deprived thereof except in accordance with the principles of fundamental justice”. In order to rely upon

section 7, one must demonstrate that an element of “life, liberty or security of the person” is impacted by action of the state. In the present case, the parties agree that by virtue of the possibility of imprisonment, Mr. Driver’s liberty interests are at stake. [ 15 ] The real issue in this case is whether any deprivation of his liberty interest is in accordance with the principles of fundamental justice. 2. The change from “will” to “may”. [ 16 ] Mr.

Driver contends that the change of the language of the peace bond provisions creates an unprecedented category of standard of proof whereby the standard of proof has changed from probability based reasoning (that an individual will commit a terrorism offence) to possibility based reasoning (that an individual may commit a terrorism offence). Mr. Driver argues that the “plain reading”

interpretation of the

section implies that the standard of proof has been relaxed to require “plausible grounds to believe that an individual will commit an offence” such that the standard of proof equates to a “mere possibility that an individual will commit an offence”. The result creates a new standard of proof that is lesser than “balance of probabilities”. In light of the fact that the subject of the recognizance has not been alleged to have committed a criminal offence, Mr. Driver argues that such a standard is unconstitutional. [ 17 ] In support of this argument, Mr. Driver has drawn an analogy to the grounds required by peace officers to make a demand for an Approved Screening Device (“ASD”) pursuant to

section 254 of the Criminal Code . In ASD cases, an officer needs only “reasonable suspicion” that the driver has consumed alcohol to make a lawful demand of the driver to provide a sample of their breath into the approved screening device. In that context, a driver has been momentarily arbitrarily detained, thus his or her liberty has been deprived. The officer believes that there is a reasonable possibility that there is alcohol in the driver’s system, prompting the ASD demand. Mr. Driver points out that an ASD demand has been found to be unconstitutional, and is only saved by

section 1 of the Charter on the basis that it is a temporary and relatively non-evasive form of arbitrary detention. Mr. Driver suggests that

section 810.011 is neither temporary nor non-evasive and therefore is not constitutionally salvageable. [ 18 ] Mr. Driver extends the reasoning applied above to suggest that in addition to diminishing the standard of proof, the amendments have altered the “thing to be proven” from requiring that the state prove that the subject “will” commit an offence to requiring that the state prove that the subject “may” commit an offence.

The end result is that both the standard of proof and the “thing to be proven” is conflated such that the state only need prove a “mere possibility” that a terrorism offence be carried out in order to successfully achieve a recognizance against the subject. [ 19 ] It is clear that Parliament has infused the concept of “mere possibility” into

section 810.011 by inserting the word “may”.

However, the position presented by Mr. Driver overemphasizes the importance of the word “may” in the section. In order to understandthe proper use of “may” in the context of the legislation, it is necessary to differentiate between what is being proven from the degree ofcertainty of proof that is required. [20] In R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, 1987 CarswellNS 41, the Supreme Court of Canada considered thedangerous offender provisions of the Criminal Code which also require consideration of future offending and as such are preventative innature.

The Court stated at paragraphs 119 and 120; The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt. He cites in support thefollowing statement of Isabel Grant, in her

article "Dangerous Offenders" (1985), 9 Dalhousie L.J. 347, at p. 360: How does one prove beyond a reasonable doubt that at some time in some setting, an individual is likely to endanger some person. Surelyif we add "beyond a reasonable doubt" to a "future likelihood" the sum total can be no greater than a balance of probabilities; a standardwe would never accept in a criminal trial. However, as Holmes has reminded us, the life of the law has not been logic: it has been experience.

The criminal law must operate in aworld governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established ina future context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity of thelegislative objectives embodied in

Part XXI, for to require certainty in such matters would be tantamount to rendering the entire processineffective. Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" ofspecified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the meansof proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting thatthis require the court to assert an ability to predict the future.

I do not find it illogical for a court to assert that it is satisfied beyond areasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. [Emphasis added.] [21] The Court in Lyons concluded this analysis by distinguishing between the fact to be proven and the standard of proof by whichthat fact is proven. [22] Similarly in the case at bar, the proper analysis must begin with a consideration as to what constitutes the fact to be proven, asdistinct from the standard of proof to determine that fact.

In order to determine whether the standard of proof has changed, as argued byMr. Driver, it is necessary to first uncover what “fact is to be proven” in a

section 810.011 application. Accordingly, it is necessary toconsider the practicality of what is being sought and the legislative objectives of

section 810.011, which is found upon examination ofthe context in which the legislation was amended. The

preamble to the Anti-terrorism Act, 2015 states: Whereas the people of Canada are entitled to live free from threats to their lives and their security; Whereas activities that undermine the security of Canada are often carried out in a clandestine, deceptive or hostile manner, areincreasingly global, complex and sophisticated, and often emerge and evolve rapidly; Whereas there is no more fundamental role for a government than protecting its country and its people; Whereas Canada is not to be used as a conduit for the carrying out of activities that threaten the security of another state; Whereas protecting Canada and its people against activities that undermine the security of Canada often transcends the mandate andcapability of any one Government of Canada institution; Whereas Parliament recognizes that information needs to be shared — and disparate information needs to be collated — in order toenable the Government to protect Canada and its people against activities that undermine the security of Canada; Whereas information in respect of activities that undermine the security of Canada is to be shared in a manner that is consistent with theCanadian Charter of Rights and Freedoms and the protection of privacy; And whereas Government of Canada institutions are accountable for the effective and responsible sharing of information; [Emphasisadded.] [23] It is apparent from the wording of the

preamble that there is a concern that the complex clandestine activities of terrorismemerge and evolve rapidly. In order to address this concern, it is necessary that the state have the ability to execute preventative powersearlier in the investigative process to ensure that terrorism offences are foiled in a timely manner. It is evident that amending the sectionfrom “will” to “may” is designed to accomplish this end, by allowing for earlier intervention. Ultimately, the premise of the section810.011 recognizance is directed at preventing anyone who may be transitioning towards committing a terrorism offence.

Accordingly,the fact to be proven is whether the subject “may commit a terrorism offence”. [24] The Anti-terrorism Act, 2015 is not the first endorsement of the notion of combating terrorism through preventative measureson the basis of the possibility of terrorism offences. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3, the Supreme Court of Canada made the following comments respecting the extent to which it was necessaryto show

an act was a “danger to the security of Canada” (at paragraph 88):

First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, andto thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on adistant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified;not only an immediate threat but also possible future risks must be considered.

Fourth, Canada’s national security may be promoted byreciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to concludethat to insist on direct proof of a specific threat to Canada as the test for “danger to the security of Canada” is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada.

But the threat need not be direct; rather it may be grounded indistant events that indirectly have a real possibility of harming Canadian security. [Emphasis added.] [25] The rationale followed by the Court, though applied more globally in Suresh, equally applies to the danger of individualscommitting terrorism offences. [26] In

section 810.011, the word “may” remains premised upon “fear on reasonable grounds” which has not changed from thepredecessor

section 810.1. The Ontario Court of Appeal undertook an in-depth analysis of the extent of preventative powers of the stateto impose restrictions on individuals in R. v. Budreo, (ON SC), 1996 CarswellOnt 24, [1996] O.J. No. 3. Inanalysing the standard of proof requisite in the context of a

section 810.1 recognizance, the court determined that the language used insection 810.1 (“fears”, “satisfied” and “reasonable grounds”) is consistent with a standard of proof required on a balance of probabilities,or that it was “more likely than not” that that the defendant would commit an offence. [27] The Court observed (at paragraph 45) that the exercise of preventative conditions is “justified by the risk of harm ordangerousness posed by certain individuals”, and went on to state: Each of these powers is triggered by a different event: a conviction, a charge or a fear of a future offence.

But they all have in commonthe objective of forestalling harm rather than merely punishing harm once it has occurred. As well, they all involve the evaluation ofthe potential of an individual to commit an offence. They represent a fabric of prevention woven deeply into our criminal law.[Emphasis added.] [28] In Budreo the Court then noted at paragraph 57: However, the court cannot grant a licence to legislate just any preventive measure imaginable.

The breadth and severity of the preventiverestrictions must be in keeping with the triggering event that legitimizes the restriction and with the standard of proof required in provingthe risk posed by the potential offender. In other words, a conviction for a serious offence with proof of dangerousness beyond areasonable doubt can justify even indeterminate detention; proof on a balance of probabilities that an offence will be committed may onlypermit restrictions on liberty short of detention. [29] In respect of

section 810.011, Parliament has elected to retain the standard of proof on a balance of probabilities which accordswith other forms of peace bonds. As discussed, the fact to be proven is reflective of the necessity for the state to stem rapidly emergingand evolving hostile actions that impact the security of the nation. Parliament has struck a balance that requires an informant todemonstrate on reasonable grounds that the subject may commit a terrorism offence. The requirement for reasonable grounds is notspeculative but requires a “proven factual foundation which raises a probable ground to suspect future behaviour” (see Budreo paragraph27), as is required for a recognizance pursuant to

section 810.1. Furthermore, the requirement for a “reasonable possibility” to be provenpursuant to

section 810.011 is semantically equivalent to the “real possibility” of danger of harm to Canadian security accepted by theSupreme Court of Canada in Suresh, supra. [30] Accordingly, while Mr. Driver’s argument has some attraction at first blush, upon more detailed analysis, the argument iswithout merit. The standard of proof has not changed.

Section 810.011 clearly delineates that the standard is premised on reasonablegrounds, which remains unchanged from the previous legislation. What has changed is the “thing to be proven” that is, that the statemust prove on a balance of probabilities that a terrorism offence reasonably may be committed. While Parliament has altered section810.011 to require only a “possibility” to be shown to justify a peace bond, this is not, in and of itself cause for a finding ofunconstitutionality, unless the result is that the

section becomes vague or overbroad. 3. Is the result vague? [31] In order for a law to avoid being considered so vague that

section 7 of the Charter is triggered, the law must (

a) provide “anintelligible standard according to which the judiciary must do its work” (See Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927 at paragraph 64); and (

b) provide an adequate basis for legal debate, such that it delineates an area of riskand provides fair notice to citizens, and at the same time creates limits on enforcement discretion for the authorities (see R. v. NovaScotia Pharmaceutical (SCC), [1992] 2 S.C.R. 606). [32] Mr. Driver contends that the insertion of the word “may” creates a standard that defies an intelligible standard on which thejudiciary can determine the issue. As already determined, the

section in its entirety requires an assessment of whether there is evidenceto suggest that the subject reasonably might commit a terrorism offence. [33] “Terrorism offence” is defined in

section 2 of the Criminal Code, as (

a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23, (

b) an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with aterrorist group, (

c) an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes aterrorist activity, or (

d) a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or any counselling in relation to, an offence

referred to in paragraph ( a ), (

b) or ( c ). As indicated above, a terrorism offence includes “terrorist activity”, which is defined in

section 2 having the same meaning as in subsection 83.01(1) , where several specific acts are delineated which alert citizens as to the parameters of the offence: (

a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences: (

i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft , signed at The Hague on December 16, 1970, (ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation , signed at Montreal on September 23, 1971, (iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents , adopted by the General Assembly of the United Nations on December 14, 1973, (iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages , adopted by the General Assembly of the United Nations on December 17, 1979, (

v) the offences referred to in subsection 7(2.21) that implement the Convention on the Physical Protection of Nuclear Material , done at Vienna and New York on March 3, 1980, as amended by the Amendment to the Convention on the Physical Protection of Nuclear Material , done at Vienna on July 8, 2005 and the International Convention for the Suppression of Acts of Nuclear Terrorism , done at New York on September 14, 2005, (vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation , supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation , signed at Montreal on February 24, 1988, (vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation , done at Rome on March 10, 1988, (viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf , done at Rome on March 10, 1988, (ix) the offences referred to in subsection 7(3.72) t hat implement the International Convention for the Suppression of Terrorist Bombings , adopted by the General Assembly of the United Nations on December 15, 1997, and (

x) the offences referred to in subsection 7(3.73) t hat implement the International Convention for the Suppression of the Financing of Terrorism , adopted by the General Assembly of the United Nations on December 9, 1999, or (

b) an act or omission, in or outside Canada, (

i) that is committed (

A) in whole or in part for a political, religious or ideological purpose, objective or cause, and (

B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and (ii) that intentionally (

A) causes death or serious bodily harm to a person by the use of violence, (

B) endangers a person’s life, (

C) causes a serious risk to the health or safety of the public or any segment of the public, (

D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (

A) to (C), or (

E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (

A) to (C), and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include

an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. Furthermore, a limitation is placed upon what constitutes terrorist activity in

section 83.01(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. Since terrorist activity does not include “the expression of political, religious or ideological thoughts, beliefs or opinions” on their own,one cannot commit a terrorism offence by expressing political, religious or ideological thought, belief or opinion without doingsomething more. While such expressions may combine with other actions undertaken by a subject that result in a finding that the subjectmay commit a terrorism offence,

section 83.01(1.1) provides a watermark standard by which courts can ascertain whether the actions ofthe subject reasonably may lead to a terrorism offence. [34] At the same time,

section 83.01(1.1) alerts citizens that expressions of political, religious or ideological thoughts, beliefs oropinions are not prohibited. This limitation on what constitutes a prohibited act properly defines the terrorism offences for the purposesof enforcement and legal debate. Furthermore, citizens are also put on notice that steps to promote or facilitate a criminal offenceinvolving terrorism will trigger

section 810.011. Accordingly,

section 810.011 is not vague. 4. Is the result overbroad? [35] The concepts of vagueness and overbreadth have been widely considered to be related in certain cases, in that a law that is overreaching in its application can be so due to vagueness. However, a law can be clear in its application, yet still be overbroad. The conceptof overbreadth deals with instances where the law applies to people and circumstances beyond those that it is aimed at reaching inachieving the legitimate objectives of the state.

In other words, if the means taken by the state are broader than is necessary to achieveits ends, then the law violates the principles of fundamental justice, as it is effectually arbitrary for those who have been unjustly caughtby the provisions (see R. v. Heywood (SCC), [1994] 3 S.C.R.761). [36] In the present case, Mr. Driver argues that

section 810.011 is overbroad on the basis that the

section applies to all individualswho may commit a terrorism offence, as opposed to all individuals who will commit a terrorism offence. [37] It is necessary at the outset of an overbreadth analysis to be mindful of the Supreme Court of Canada’s direction in Heywood,supra, at page 793: In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by thelegislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have thepower to make policy choices.

A court should not interfere with legislation merely because a judge might have chosen a different meansof accomplishing the objective if he or she had been the legislator. *** However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislationinfringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish thegovernmental objective. [38] As indicated, there can be similarities between the concepts of vagueness and overbreadth. As mentioned in the discussion onvagueness,

section 810.011 is connected to

section 83.01(1.1) in its application given the fact that

section 810.011 incorporates wordingused in

section 83.01.

Section 83.01(1.1) makes it clear that those who merely express political, religious or ideological thoughts, beliefsor opinions are not intended to be caught by the terrorism sections. This is an important balance struck by Parliament in crafting thelanguage incorporated into

section 810.011, as it excludes any person who chooses to hold certain views that are not shared by themainstream public, even if those views are expressed verbally or in writing. At the same time, for the body of people who choose to takesteps beyond the mere expression of such thoughts,

section 810.011 can be utilized without arbitrarily applying to those who do not takesuch steps. [39] It should be also noted that, as pointed out by Crown counsel, certain procedural safeguards are also built into

section 810.011. Firstly, the informant who claims “reasonable fear that another person may commit a terrorism offence” must seek the AttorneyGeneral’s consent before proceeding to lay an information. Once that process is complete,

section 810.011(3) requires adjudication ofthe matter, such that a provincial court judge must be satisfied on evidence adduced that the stated reasonable grounds exist. Thisrequirement of procedural fairness allows for a judicial hearing to ensure that the

section is applied in a just manner. [40] The limitation of terrorism offences to acts beyond the expression of thoughts, opinions and beliefs in combination with therequirement that

section 810.011 be adjudicated before a court, allows for the provisions of

section 810.011 to be applied in a justmanner. Accordingly the provisions of

section 810.011 are not overbroad in application. Does

section 810.011 offend

section 11(

d) and (e)? [41] Mr. Driver alleges that the imposition of the

section 810.011 process results in a de facto charge against him. The basis for thiscontention is that either by virtue of the arrest and bail process or by the operation of the conditions imposed upon determination of theultimate issue, the result is punitive in nature. In other words, Mr. Driver says that whether he agrees to enter into the recognizance ornot, he is punished by operation of

section 810.011. [42] Mr. Driver argues that

section 83.3 is related to

section 810.011 in so far as judicial interim release is concerned. While the twosections are related as already discussed, the arrest without warrant provisions in

section 83.3 are not applicable to individuals chargedunder

section 810.011. Since

section 810.011 falls under

Part 27 of the Criminal Code (Summary Convictions), judicial interim releaseis governed by

section 795: 795. The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice, and the provisionsof Parts XVIII.1, XX and XX.1, in so far as they are not inconsistent with this Part, apply, with any necessary modifications, toproceedings under this Part.

[ 43 ] Therefore, a defendant who is the subject of an information pursuant to

section 810.011 is to be dealt with pursuant to the arrest and bail provisions that apply to any

summary conviction offence. It is well established law that those persons subjected to a

section 810.1 order are subject to the bail provisions, and that such a deprivation of liberty is preventative in nature as opposed to punitive. ( See R. v. Budreo , supra .) The application of the judicial interim release provisions have not been amended by the Anti-terrorism Act, 2015 . In Budreo , supra , the court dealt with an argument that an arrest warrant was designed for an alleged improper collateral purpose: to achieve the conditions sought on the application itself.

In rejecting this position, the court concluded that arrest and bail are a “legitimate first step” towards a recognizance hearing. [ 44 ] The same argument has been advanced by Mr. Driver. The reasoning in Budreo applies equally to the case at bar. The process pursuant to

section 810.011 peace bond needs to be initiated. As in any preventative court order application, the court must have a mechanism to invoke the process and ensure that any potential breach of the peace is addressed in a reasonable way. The bail provisions of the Criminal Code allow for a preliminary assessment of the extent to which conditions are necessary to ensure the subject of the application is not a danger to offend. The flexible nature of the bail hearing judge is discretion meets constitutional muster. Does

section 83.3 offend

section 7 of the Charter ? [ 45 ] It should be noted at the outset that Mr. Driver is not subject to an information pursuant to

section 83.3 and there has been limited argument presented on the constitutionality of

section 83.3. The focus of Mr. Driver’s submission in regards to

section 83.3 has been directed towards the interplay between sections 83.3 and 810.011 as it relates to arrest and judicial interim release. As already indicated,

section 83.3 does not impact Mr. Driver given that he is subject to bail pursuant to

section 504 and following. [ 46 ] Mr. Driver’s challenge to

section 83.3 was premised on “that s. 83.3 ff. of the Criminal Code in combination with s. 810.011 ff. offends s. 7 , s. 11(d) , 11(e) , and s. 24 of the Canadian Charter of Rights and Freedoms ”. Based upon the limited challenge to

section 83.3 and the fact that Mr. Driver has not been subject to an information pursuant to

section 83.3, it is not necessary to undertake a full analysis of the constitutionality of this

section at this juncture. Are the available

section 810.011(6) “reasonable conditions” overbroad? [ 47 ] Once a judge has determined that a recognizance is justified pursuant to

section 810.011(3), the court may impose reasonable conditions as a part of that recognizance: Conditions in recognizance

(6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant (

a) to participate in a treatment program; (

b) to wear an electronic monitoring device, if the Attorney General makes that request; (

c) to return to and remain at their place of residence at specified times; (

d) to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (

e) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2) (

a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or (

f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2) (

b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance. Mr. Driver suggests that the conditions open to the court set out in

section 810.011(6) are not reasonable, but are overbroad in their application and therefore amount to arbitrary conditions that are punitive in nature. The Crown argues that while some of the conditions that are available are unusual in the context of terrorism offences, the fact that the court is not required to order such conditions in every case, provides a measure of procedural fairness that accords with the constitutionality of the section. [ 48 ]

Section 810.011 evolved from the traditional

section 810 peace bond provisions through a series of amendments that were designed to tailor peace bonds to the specific circumstances of the subject of the order. For instance, there are now specific

section 810 peace bond provisions related to preventing specific offences such as; long term offenders (section 810.2), sexual offences (section 810.1), and kidnapping (section 810.02). While the wording of

section 810.011 was changed in order to allow for timely imposition of a preventative order, by adopting the word “may” as opposed to “will”, the conditions

section remains the same as the other subsections of 810. The end result is that courts have a generalized panoply of conditions to choose from in order to determine what appropriate conditions apply. [ 49 ] On the other hand,

section 83.3 is a

section that is specifically designed to apply to terrorism generally. Interestingly, Parliament did not adopt the same panoply of optional conditions for a

section 83.3 recognizance. The court may only impose conditions that the subject: keep the peace; abide by a weapons and firearm prohibition; surrender any such weapons, firearms and licences; surrender his or her passport; and remain within a specified area. [ 50 ] There is little difference between an individual who may facilitate a terrorism offence (section 83.3) and someone who may

commit a terrorism offence (section 810.011) to justify the significant variance to the power of the court to impose such dramatically different conditions. The only conclusion that one can reach is that the list of conditions that were transported to

section 810.011 were done so without regard to their application in the context of a potential terrorism offence. [ 51 ] To that end, it is necessary to examine the “reasonable conditions” as listed in

section 810.011(6) to determine if they are overbroad in their application to terrorism offences. Mr. Driver has contested only sections 810.011(a), (

b) and (c). 1. (

a) to participate in a treatment program. [ 52 ] In order to not be considered overbroad, the condition in question must be considered necessary in order to achieve the ends of justice without being overly so. What kind of treatment would be considered in the context of the possibility of engaging in terrorism offences? Presumably, the only kind of treatment would be “deprogramming” the ideology that results in the subject holding the belief system causing concern that the subject may engage in terrorism.

The danger in this type of rationale is identified in the Suresh decision when the court sought to define “terrorism”: 94 One searches in vain for an authoritative definition of “terrorism”. The Immigration Act does not define the term. Further, there is no single definition that is accepted internationally. The absence of an authoritative definition means that, at least at the margins, “the term is open to politicized manipulation, conjecture, and polemical

interpretation”: factum of the intervener Canadian Arab Federation (“CAF”), at para. 8; see also W. R. Farrell, The U.S. Government Response to Terrorism: In Search of an Effective Strategy (1982), at p. 6 (“The term [terrorism] is somewhat ‘Humpty Dumpty’ -- anything we choose it to be”); O. Schachter, “The Extraterritorial Use of Force Against Terrorist Bases” (1989), 11 Houston J. Int’l L. 309, at p. 309 (“[n]o single inclusive definition of international terrorism has been accepted by the United Nations or in a generally accepted multilateral treaty”); G.

Levitt, “Is ‘Terrorism’ Worth Defining?” (1986), 13 Ohio N.U. L. Rev. 97, at p. 97 (“The search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail”); C. C. Joyner, “Offshore Maritime Terrorism: International Implications and the Legal Response” (1983), 36 Naval War C. Rev. 16, at p. 20 (terrorism’s “exact status under international law remains open to conjecture and polemical

interpretation”); and J. B. Bell, A Time of Terror: How Democratic Societies Respond to Revolutionary Violence (1978), at p. x (“The very word [terrorism] becomes a litmus test for dearly held beliefs, so that a brief conversation on terrorist matters with almost anyone reveals a special world view, an

interpretation of the nature of man, and a glimpse into a desired future.”) 95 Even amongst those who agree on the definition of the term, there is considerable disagreement as to whom the term should be attached: see, e.g., I. M. Porras, “On Terrorism: Reflections on Violence and the Outlaw” (1994), Utah L. Rev. 119, at p. 124 (noting the general view that “terrorism” is poorly defined but stating that “[w]ith ‘terrorism’ . . . everyone means the same thing. What changes is not the meaning of the word, but rather the groups and activities that each person would include or exclude from the list”); D.

Kash, “Abductions of Terrorists in International Airspace and on the High Seas” (1993), 8 Fla. J. Int’l L. 65, at p. 72 (“[A]n act that one state considers terrorism, another may consider as a valid exercise of resistance”). Perhaps the most striking example of the politicized nature of the term is that Nelson Mandela’s African National Congress was, during the apartheid era, routinely labelled a terrorist organization, not only by the South African government but by much of the international community.

If terrorism is “a litmus test for the dearly held beliefs”, it follows that the concept of terrorism is an ideological construct. Accordingly, imposing ideological programming is to impose subjective belief systems upon the subject. Given that freedom of thought and expression are protected by

section 2 of the Charter , it is inconsistent with Charter values to implicitly prohibit such thought, ideology and expression . While the Crown argues that the procedural safeguard of allowing the court to have the option of not imposing such a condition saves the constitutionality of the provision, the condition itself must be reasonable. With respect, requiring deprogramming “treatment” does not amount to a reasonable condition. No other type of treatment has been offered that would be in any way rationally connected to

section 810.011(6)(a). As a result,

section 810.011(6)(

a) is contrary to

section 7 of the Charter . 2.

b) to wear an electronic monitoring device, if the Attorney General makes that request (

c) to return to and remain at their place of residence at specified times [ 53 ] Both 810.011(6)(

b) and (

c) effectively amount to imposing house arrest upon the subject. Mr. Driver argues that the requirement of house arrest as a condition to the recognizance is punitive in nature and over reaches the aims of the legislation. Furthermore, it is argued that the imposition of an ankle bracelet is stigmatizing and in other applications of a

section 810 recognizance, is reserved only for those who have already committed heinous crimes and are being monitored beyond the expiry of their sentence. [ 54 ] While this may be the case, it is important to bear in mind that deference is owed to the legislators in establishing the parameters of the legislation. Furthermore, the optional nature of the conditions allows for a judge to have the flexibility to not impose a condition requiring an ankle bracelet or house arrest.

It is conceivable that in cases where the informant has strong grounds to believe that an individual will commit a terrorism offence, greater scrutiny is necessary. In light of the far reaching and devastating potential results of terrorist activity, the imposition of an ankle bracelet may be warranted in some extreme circumstances, even though the subject may never have been convicted of an offence. [ 55 ] Accordingly,

section 810.011(6)(

b) and (

c) are not overbroad. Conclusion

[ 56 ] Mr. Driver has advanced a position that amendments made to the Criminal Code by enactment of the Anti-terrorism Act, 2015 have rendered

section 810.011 of the Criminal Code unconstitutional on the basis that the provisions are vague and overbroad in operation. Mr. Driver therefore suggests that

section 810.011 should be struck down. [ 57 ]

Section 810.011 is not unconstitutional, save and except for

section 810.011(6)(

a) which allows a court to impose a condition that the subject of the recognizance undertake treatment where the subject may commit a terrorism offence. [ 58 ]

Section 83.3 does not apply to the determination of the manner of arrest and release of a person for whom the state seeks a

section 810.011 recognizance. When the state is seeking a

section 810.011 order, arrest and release is governed by

part 16 of the Criminal Code . The application of bail provisions relative to

section 810.011 is constitutionally valid given that it allows for preventative conditions to be imposed after proper consideration in the context of a bail hearing. “Original signed by” _________________________ ROLSTON P.J.