Appeal process for being designated a "Terrorist Group" (Canada)

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Yesterday, the office of Canada's Minister of Public Safety and Emergency Preparedness designated 13 groups as "Terrorist Groups". According to CBC, the result is that it is not necessarily a crime to be a member of a listed group. But banks and financial institutions can now freeze the group's assets, and police can charge anyone who financially or materially supports the group. Members seeking entry into Canada may be denied if they are found to be associated with a listed entity and the group's online content can be removed more easily.

I won't even state the groups' names here because my question is about a more general principle; what defense would an organization or an individual have against the state upon being designated as an affiliate to a terrorist organization? Regardless of what you may think of this specific instance, I think it is quite bizarre to have the state be able punish you with all that was stated above through essentially what is executive action (no legislation, or opportunity of defending oneself in a court). Any references to Common Law precedent as well as parallels in the USA would be appreciated.

Bertrand Einstein IV

Posted 2021-02-04T17:39:10.650

Reputation: 480

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The EU does offer a recourse (https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180203en.pdf) but that seems out of the scope of your question (especially now that the UK is out). Interestingly, they also offer a procedure to pay the lawyers (since funds are frozen, that's not trivial).

– Relaxed – 2021-02-04T18:00:04.360

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According to npr.org: "In addition to the Proud Boys, Canada's government categorized the Atomwaffen Division, The Base and the Russian Imperial Movement as terrorist entities. Also included were three al-Qaida affiliates, five ISIS affiliates and the Hizbul Mujahideen, which operates in India-administered Kashmir." There are currently 73 listed entities

– CGCampbell – 2021-02-04T18:03:38.660

Not gonna vote to close this as too broad, but your related sub-questions (examples/precedents of review in Canada, USA parallels) should probably be asked separately. https://meta.stackexchange.com/questions/39223/one-post-with-multiple-questions-or-multiple-posts

– Fizz – 2021-02-04T23:46:46.503

2This seems like a question more suited for Law.SE. – ouflak – 2021-02-05T09:15:51.607

@nanoman If the designation is merely declaring a fact, then they have been terrorist groups before, and previous affiliation might still be a crime. Depends on the actual laws, of course. – I'm with Monica – 2021-02-05T09:49:03.770

8@nanoman From what I read so far, the claim in the question that people can be jailed just for associating themselves with a designated terrorist organization might be rather exaggerated. – Philipp – 2021-02-05T11:35:18.170

4@nanoman I looked up the source the question mentioned but didn't cite, added it to the question and corrected the parts which were conveyed incorrectly. – Philipp – 2021-02-05T11:42:03.447

Answers

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The appeals process is set out in part 4 of the Anti-Terrorism Act (2001), which amended the Proceeds of Crime (Money Laundering) Act and implemented the list. In simple terms, the process is that a listed group can apply to the Solicitor General for their removal. Their decision can then be challenged by the group in the form of a judicial review. After this process is complete, the group may not apply again unless there is a "material change in circumstances", or a review of the whole list has been completed by the Solicitor General, something which occurs every two years.

In full:

  1. On application in writing by a listed entity, the Solicitor General shall decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be a listed entity.
  2. If the Solicitor General does not make a decision on the application referred to in subsection (2) within 60 days after receipt of the application, the Solicitor General is deemed to have decided to recommend that the applicant remain a listed entity.
  3. The Solicitor General must give notice without delay to the applicant of any decision taken or deemed to have been taken respecting the application referred to in subsection (2).
  4. Within 60 days after the receipt of the notice of the decision referred to in subsection (4), the applicant may apply to a judge for judicial review of the decision.
  5. When an application is made under subsection (5), the judge shall, without delay
    • (a) examine, in private, any security or criminal intelligence reports considered in listing the applicant and hear any other evidence or information that may be presented by or on behalf of the Solicitor General and may, at the request of the Solicitor General, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person;
    • (b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any person;
    • (c) provide the applicant with a reasonable opportunity to be heard; and
    • (d) determine whether the decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a listed entity. 
The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
  6. The Solicitor General shall cause to be published, without delay, in the Canada Gazette notice of a final order of a court that the applicant no longer be a listed entity.
  7. A listed entity may not make another application under subsection (2), except if there has been a material change in its circumstances since the time when the entity made its last application or if the Solicitor General has completed the review under subsection (9).
  8. Two years after the establishment of the list referred to in subsection (1), and every two years after that, the Solicitor General shall review the list to determine whether there are still reasonable grounds, as set out in subsection (1), for an entity to be a listed entity and make a recommendation to the Governor in Council as to whether the entity should remain a listed entity. The review does not affect the validity of the list.
  9. The Solicitor General shall complete the review as soon as possible and in any event, no later than 120 days after its commencement. After completing the review, the Solicitor General shall cause to be published, without delay, in the Canada Gazette notice that the review has been completed.
  10. In this section, “judge” means the Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Chief Justice.

CDJB

Posted 2021-02-04T17:39:10.650

Reputation: 47 740

13Are there any examples of this appeals process being attempted? – GeoffAtkins – 2021-02-04T19:44:48.083

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@GeoffAtkins: It appears that IRFAN-Canada and the World Tamil Federation both attempted to be de-listed via the appeals process, but details are scarce. They're both still on the list, though.

– Michael Seifert – 2021-02-08T18:32:29.167

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As with any other question of this sort, there are only three avenues for overturning this type of decision:

  • Political: Create public pressure through protests, media coverage, etc. to encourage the minister or his superiors to review and (hopefully) discard the action
  • Legislative: Find or elect legislators who will pass new law removing the designation
  • Judicial: Challenge some specific use of this action in court, arguing that the designation itself is without merit and causes unnecessary harm

All carry the risk that one must publicly admit to sympathizing with the group labeled as 'terrorist' in order to argue that the label is wrong, thus opening oneself to penalties under the law. But that is always the risk of the freedom-fighter...

The first two are avenues unlikely to lead anywhere unless the group in question has tremendously broad support in the population. Over the long term, even a distinct minority can gather such support — case in point, the change in status of the LGBTQ community in the US over the last 50 years — but that implies a group with a generational reach actively and persistently pursuing the goal. The third is the best option for small, insular groups, but generally demands a clear-cut legal case in which some group-member is harmed by the legal system to an extent totally out of proportion any community good drawn from the legal declaration. That is a difficult bar to pass for a group that is associated with factual terroristic activities, unless that group is willing to denounce and reject threatening, terroristic activities.

Ted Wrigley

Posted 2021-02-04T17:39:10.650

Reputation: 32 554

Your last point is a bit odd. As far as I know, only somewhat recently has LGBTQ been "designated" an ideology, and that mostly happened in Eastern(ish) Europe: Poland, Russia etc. Surely if one merely talks of social ostracism there can be other reasons besides terrorism, but even those who ostracize LGBTQ generally don't do it along the lines of it being linked to terrorism. (Not my DV though.) – Fizz – 2021-02-04T23:36:01.930

10@Fizz: I was merely pointing to LGBTQ as a minority group that shifted its public image over time. Don't read more into it than that. – Ted Wrigley – 2021-02-05T00:38:00.830

@Fizz: Actually, according to Hannah Arendt, many political idea's belong to a broad front called an ideology, and this without any pejorative connotations. Liberalism is an ideology just as much as communism is. That Poland and Hugary have called LGBTQ an ideology is for them simply to associate the negative connotations that is associated with the term ideology. – Mozibur Ullah – 2021-02-05T12:52:04.017

9-1 This does not answer the actual question asked, i.e. what is the appeals process. As CDJB has shown, there is an actual process. – CGCampbell – 2021-02-05T13:40:14.423

2@MoziburUllah The thing is, LGBTQ isn't an ideology, any more than having a particular melanin density is. – wizzwizz4 – 2021-02-05T13:50:15.727

@CGCampbell: It answers the question on a broad basis. There is nothing wring with it. – Mozibur Ullah – 2021-02-05T14:02:48.527

@wizzwiss4: I'm making a philosophical point - what's yours? As I've already pointed, often the term ideology is used as political slang in a pejorative manner and not in a constructive manner. – Mozibur Ullah – 2021-02-05T14:04:35.503

1@CGCampbell: If you want to take questions literally, then you can see that the question itself does not ask directly for an appeals procedure. In fact, the question is as broadly based as the answer itself here is. – Mozibur Ullah – 2021-02-05T14:06:48.373

9/sigh if I down-vote anonymously, then the poster will ask "why the downvotes?" I, personally, do not feel Mr. Wrigley's answer is useful and have down-voted it. I explained why. I do NOT need to justify it, nor did I even need to actually explain why – CGCampbell – 2021-02-05T14:11:30.717

7@CGCampbell: I never question downvotes. People are free to downvote: if they explain I appreciate it and consider their reasoning; if not, I just shrug and move on. In this case I agree that CDJB's answer is better than mine, so no worries there. But my answer is correct on general principles, so no worries there either. I mean, this isn't some true/false quiz... – Ted Wrigley – 2021-02-05T15:07:12.390