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Abstract

This paper inquires into the constitutionality of the section 810.01 "fear of terrorism" offence that was introduced into the Criminal Code under the Anti-Terrorism Act, 2015 amendments. Ordinarily, criminal justice and sentencing intersect at the punishment of offenders for crimes they have committed. However, post 9/11, in reaction to the fear of terrorism, the focus has shifted from punishing past crimes to crime prevention. That is, certain preventative measures may be imposed in the absence of a charge, trial or conviction. Arguably, the power to detain or control the movements of persons without charging them challenges the so-called sacrosanct nature of the rule of law. This paper will unfold in three parts. Part one outlines the legal framework related to preventative recognizances and the fear of terrorism offence in the Criminal Code. Part two surveys the case law and considers constitutional questions evoked by the Canadian Charter of Rights and Freedoms with particular attention paid to the tension between section 810.01(3) recognizances and the presumption of innocence, arbitrary detention and the right to remain silent, criminal procedure and the rule of law. Part three unpacks the preventative/punitive dichotomy which is the rationale upon which section 810.01(3) recognizances are justified, by arguing that rather than a preventative provision, they are punitive since, arguably, they criminalize behaviour that is otherwise legal. This is a departure from the position taken by the Supreme Court of Canada.

Disclaimer: The views expressed in this publication are the author's own and do not represent the views of her current employer, the Department of Justice.

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