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Understanding Canada’s Recent Ban of Far-Right Extremist Groups

Understanding Canada’s Recent Ban of Far-Right Extremist Groups
8th February 2021 Dr. Amarnath Amarasingam

On 3 February, the Canadian government added four far-right extremist groups to their list of proscribed terrorist entities. Some of the additions weren’t surprising. The Russian Imperial Movement (RIM), an extreme-right white supremacist group, whom the Americans had also banned in April 2020, had been training and cooperating with neo-Nazi groups on US soil. The Atomwaffen Division (AWD) and the Base, have had several of their members arrested in recent years for promoting and plotting acts of violence with the expressed goal of inciting a race war, and establishing a white ethno-state.

When researchers and analysts saw that the Proud Boys were also listed along with RIM, AWD, and the Base, it raised a few eyebrows. For one, while the Proud Boys are misogynistic, racist, and have repeatedly engaged in violent street riots and public brawls with counter-protestors, the debate continues about whether most of their activity rises to the level of “terrorism”. Even more, the Minister of Public Safety was unclear about the extent to which the Proud Boys seemed to fall short of the threshold for listing prior to the 6 January insurrection at the Capitol. If the Capitol riot was a deciding factor for listing the Proud Boys, it could raise concerns about lowering the threshold and how it might impact other groups in the future.

In other words, if a Trump-like administration ever comes to power in Canada, they may, like Trump did, start to entertain the possibility of listing antifa, Black Lives Matter (BLM), or perhaps indigenous activist groups. To place all of these concerns in broader context, let’s unpack three key questions:

What is a Terror Listing in Canada?

Canada’s Criminal Code lays out a technical and legal process for listing terrorist groups. This evaluation is conducted within the federal bureaucracy. There must be “reasonable grounds to believe” that a group has knowingly attempted to or carried out a terrorist activity or otherwise participated in, or facilitated such an activity. Terrorist activity is itself defined as a serious act of violence done in furtherance of a political, religious or ideological motive, with the intent of bringing about a specific course of action, including compelling government to change a policy.

When a group is deemed to have met the legal threshold for listing, a recommendation is made to the Minister of Public Safety and then to Cabinet, who make the ultimate decision based on the advice and information provided. When a decision is made to list a group, Canada has tended to release at least some of the reasons used to support the decision. These public justifications, though, don’t constitute the full list of evidence against the group, and certainly don’t include secret intelligence that may have influenced the decision. For instance, when Canada listed neo-Nazi groups Blood and Honor and Combat 18 in 2019, the public reasons given were largely restricted to the firebombing of a building occupied by Romani families in the Czech Republic as well as the 1998 murder of two homeless men in Florida.

All listed groups have the right to appeal the decision to the government and request that the Minister of Public Safety re-evaluate the listing. If the Minister denies the appeal or 90-days elapses without a response, the group has the right to appeal the decision to the Federal Court. To date, Canada has only seen one such court challenge and none have been successful. It is unclear thus far if the Proud Boys may consider such an appeal. Even if they accept the listing for the time being, all listings are reviewed as a matter of course after five years and each five years hence.

How Does Listing Impact Groups?

First, though being listed does not criminalise the group or group membership as such, meaning that mere membership or association with the group is not criminalised, active participation of a non-trivial nature in the group’s activities, including offering financial or material support, can become a terrorist offence and individuals so engaged may be subject to prosecution.

Second, there are immediate financial implications for the groups and their members. The law provides for property seizures and asset freezing. We could also see broader debanking and denials of services for individuals connected to the group resulting from obligations on the public—including on financial service institutions—not to deal in property of the group or group members, facilitate financial transactions, and so on. As anti-terrorist financing expert Jessica Davis has written, there would also be serious consequences for known members of the group: “these individuals would find it difficult, if not impossible, to obtain a bank account, conduct financial transactions (including purchasing a house), both in Canada and abroad.”

Third, all of this means that police and CSIS will have greater incentive and authority to monitor these groups and their members, including for an increased range of behaviour that has now become or may have become criminal. Canada’s agencies will in turn have greater authority to disrupt financial transactions, group meetings, and so on.

In this sense, the Proud Boys may actually experience the pinch of being listed more so than AWD or the Base, who have always operated clandestinely and in loosely organised terror cells. The Proud Boys, rather, have been much more public facing in their activities, and will soon find that other unlisted far-right groups shy away from meeting with them, organising with them, and interacting with their publicly identified members. In this sense, there is also a fear that some of these groups may retreat into the shadows following a terror listing. The founder of the Base, Rinaldo Nazzaro, for instance, took to his Telegram page and stated that the listing was “flat-out political repression”, and went on to argue that a “decentralized network of autonomous cells is the optimal configuration.” The Proud Boys, on the other hand, have closed down many of their Telegram channels and have moved to closed discussion on Signal.

What is the Worry about Listing the Proud Boys?

The primary concerns about listing the Proud Boys have less to do with the targeting of the group itself and more to do with longstanding concerns about the listing process in general. Broadly speaking, we may break these down into four general concerns, though there are others.

First, terrorist groups are listed on a “reasonable grounds” standard, but Canada’s criminal law demands that participation in a terrorist group be proved “beyond a reasonable doubt”. This means that either the regime may be unconstitutional when used to prosecute individuals, or the listing will have to be justified at a criminal trial on a beyond a reasonable doubt standard. Either way, it is difficult to see how the listing should materially impact criminal proceedings.

Second, with the listings come a number of important decisions that operate in the shadow of the law. For example, in taking a precautionary approach to their own legal obligations, financial institutions such as big banks may deny services to individuals perceived—but not proven in court—to be associated with a listed group. Recourse in such a situation is difficult to come by and the legal and due process protections for such individuals, who may or may not have any real association with the group at all, are much less than those actually charged with a criminal offence. The “reasonable grounds” rather than “beyond a reasonable doubt” standard becomes, for such individuals, very important indeed.

Third, the legal process of listing groups is extremely opaque and relatively little justification for Canada’s listings is provided publicly. The failure to provide a transparent justification for the listing decision becomes worrisome when you add to this the concerns about the diminished standard for listing, and that it can be extremely difficult to challenge a listing once the decision is taken.

Fourth, the combination of the above concerns coupled with the reality that we are talking about listing whole groups of people causes slippery slope concerns. In short, we have a decision taken largely in secret behind a secret process, one based on a “reasonable grounds” standard, with politicians making the ultimate decisions, and the decisions in practice are extremely difficult to challenge in court. Add to this the realities of Canada’s anti-terrorism criminal regime, and particularly the fact that what constitutes a terrorist activity—the very basis for the government’s listing decision—has not been particularly well circumscribed as of yet in Canadian law – in particular how we define an ideological or political motive.

What results is a very real, though at present thankfully theoretical, worry that a politician could begin a petition to list, say, an Indigenous or other rights-seeking group because two members committed a terrorist activity and claimed responsibility of the group. Were the group of the day to be listed, then everyone associated with the movement, that had used the movement’s hashtag, or that might have been caught in a photo next to a group member at a protest, might reasonably wonder how much longer they can access their bank accounts.

It is not clear whether the law is providing the bulwark against such an outcome, or whether we have been fortunate thus far thanks to the good intentions of bureaucrats, law enforcement, and politicians. If the latter is true, then all it would take is a Trump-like administration in Canada to potentially make political opponents very worried indeed.

Amarnath Amarasingam is an Assistant Professor in the School of Religion, and cross-appointed to the School of Political Studies, at Queen’s University in Ontario, Canada. Find him on Twitter at @AmarAmarasingam

Michael Nesbitt is an Associate Professor of Law at the University of Calgary, Faculty of Law, and Fellow with the Centre for Military, Security and Strategic Studies and the Canadian Global Affairs Institute. Find him on Twitter at @MichaelJNesbitt