Q&A: How listing a terror group actually works, and why Parliament might have screwed up

There is a clear process under Canadian law, and it doesn't involve politicians grandstanding.

Last week, the government of Canada listed the Proud Boys as a terror group. This followed a motion by Parliament the week before, where Parliament declared that they believed the Proud Boys were a terror group, and called on the legal designation to be issued. What is required to list a group as a terror entity? What legal force did Parliament's motion have? The Line spoke with Dr. Leah West, an assistant professor of international affairs at the Norman Paterson School of International Affairs at Carleton University, to ask these questions.

Note from The Line Editor: This interview was beset by technical challenges, and Dr. West was very patient and understanding, and helped to fill in the gaps lost to the digital ether. The Line is grateful to her not just for her time and expertise, but especially her good humour and co-operation.

The Line: Professor, let's start with the most basic thing. What happens when a group is listed as a terror entity?

Leah West: The Criminal Code of Canada sets out a process and a threshold for listing terror entities. The threshold is that the group has to have committed or have attempted to commit terrorist activities. Security services like CSIS will collect intelligence and evidence to determine whether an organization of concern meets that threshold. If they have reasonable grounds to believe the threshold is met, the evidence is then reviewed by a lawyer at the Department of Justice — probably a few lawyers. It's packaged and sent to the minister of public safety and his staff. It's up to the minister to determine if he has reasonable grounds to believe that the threshold has been met. If he does, he makes a recommendation to cabinet and cabinet makes the determination.

The Line: What does it mean when a group becomes listed? It has symbolic import, but what about the facts on the ground?

West: The most immediate effect is that financial institutions in Canada have a responsibility not to provide financial services to listed entities. They have obligations to provide audits of their services and report to the government of Canada. That responsibility kicks in once a group is listed. The group can no longer receive financial services in Canada. Their assets will be frozen. It also means that all of the Criminal Code offences that capture facilitating or assisting a terror group can be triggered by people supporting the listed group. To be clear, you can still be found to be a terrorist organization even if you aren't previously listed, if you commit terrorist acts. In my book we called these "self-nominating" terrorist organizations. Their actions can nominate them via terrorist activity even if the government hasn't listed them. So a lack of listing isn't a bar to terror charges. But it is clarifying, and sends a signal to individuals that may be considering supporting a listed terror group.

The Line: How do the groups intersect with the individual members? If a group becomes a listed terror group, and you are a member of that group, do you immediately become a terrorist?

West: No. We don't criminalize membership in groups. We criminalize terrorist activity and supporting terror groups. If all you do is like stuff on a Facebook page, you're probably OK. But if you pay membership dues, you're providing financial assistance to a terror organization. You have a right to belong to the organization. You have a right to believe in what it stands for. But you can't help that group facilitate its activities, in any way.

The Line: So I can belong to the group. Boast of belonging to the group. Wear the t-shirts. But that's OK.

West: Well, it gets complicated! Did you buy the t-shirt? Did they profit from that? Did you give another member of the group a ride, because you're friends, and then he committed a terror act? Did you use your computer skills to help fix a computer used by the group to co-ordinate or plan their activities? The line between belonging and participation is tricky, and it can be unclear where membership becomes participation. You could loan a fellow Proud Boy five bucks, and that could be financing a terror organization. It's a very narrow and fine line.

The Line: Canadians probably think of terror groups in very 9/11-esque terms: terror groups are organized hierarchies that operate with a chain of command and cells and an operational structure. Basically, Al Qaeda. But there's also the new ISIL-style groups: more about an ideology intended to inspire followers into taking acts outside of any kind of chain of command. Does this matter much for our purposes in listing a group?

West: No. Canadian law says that terrorism is an act conducted for a political, ideological or religious purpose. And then we have the laws that establish what the act itself would be: typically an act of grave violence or destruction that threatens life. So Canadian law can cover a group that does have a top-down structure like an Al Qaeda, or a group like ISIL. It can get harder when the groups are even more dispersed, for instance antifa or the incels. Those movements may not be coherent organizations, making it unlikely that they would be listed entities, but their adherents can still be motivated by the ideology to commit terrorist activity.

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The Line: We'd also look real cute trying to bomb incel headquarters.

West: [laughs] Exactly. 

The Line: Much has been made of the fact that the Proud Boys originated in Canada. A lot of our laws again came out of that post-9/11 worldview: terrorism was something that came from the outside and attacked us on the inside. Does the legislation also work to cover the internal groups?

West: Yeah, and for the same reason above. If we can identify the political, ideological or religious purpose, and if crimes have been committed, the legislation will capture it. Consider the Proud Boys as a recent example. They do have a coherent message, they have political and ideological motivations, and if the reporting is accurate — I'm not an expert of the activity of this particular group, so I'm just using them as an example based on the reporting, which is not a criminal verdict, of course — they have committed serious crimes of violence. So just using them as an example, the fact that they're a homegrown group wouldn't matter. If there's a defined ideological, political or religious motive, serious violence, and the necessary intent, that's terrorism.

The Line: The Parliament of Canada recently passed a motion declaring the Proud Boys a terror group. That was before and separate from the announcement last week. Based on what you've told me above, Parliament voting to declare the Proud Boys was basically an opinion. It has the same legal effect of Parliament voting to declare pudding delicious. It doesn't matter.

West: Well, that's interesting! It might actually hurt. Let's look at what the motion actually said. The House voted to express its view that the Proud Boys are a terror group, and that the legal process to make that official be undertaken. But the process of designating a group a terrorist group in Canada is supposed to be independent. The security agencies collect the information. If they think it fits, they pass it onto lawyers in the government. If it passes that level of review, it goes to the minister. If the minister agrees the threshold is met, it goes to cabinet. This is a clearly defined process. But if I'm the Proud Boys, I think there's a case to be made here that the process was influenced. That it wasn't independent. That the public safety minister was under political pressure, and that cabinet was, too. It's easy to see how parliament passing a motion could arguably be seen to have interfered with the legal process. I'm not sure the Proud Boys will have much luck finding a lawyer to work for free [laughs], but they might have a case.

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The Line: Let me ask you the same question, but almost in reverse. Let's say Parliament had passed the same motion. But at any point in the designation process — CSIS, lawyers, Bill Blair or cabinet — there had been a “no” vote. Someone said, we just don't think the threshold is met here. And the group was therefore not declared a terror group. Does Parliament's motion have any legal power?

West: No. None.

The Line: Let me ask you the big-picture question: is listing a terror group effective?

West: That's an important question. A lot of the time, no. It's not. There are 73 terror listed terror groups in Canada and most of them have almost no footprint here. For our laws to work, there needs to be an organization to actually go after, in terms of its financing. But although I'm not an expert on the Proud Boys, like I said above, this could be an example of where the law would work well. It has chapters. It has leaders. It has a structure. It's active in Canada. And the same is true of groups like Atomwaffen and The Base. So these could be examples of where the laws actually would be effective and meaningful.

But there are complications here, too. It is not yet clear if our terror-group designation laws are constitutional. Many of the foreign groups, or the ones with no footprint here, haven't bothered to go to court, for obvious reasons. But we are now going after domestic-based groups. They'll have a lot more incentive to challenge these laws. And I think that’s a good thing, the constitutionality of the listing process has been in doubt since its inception. If we are going to call on the government to expand the list, we should also demand that the listing and appeal process be procedurally fair — and I have serious doubts about that.


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