Commission or instructing to carry out terrorist activity is one of the most serious crimes under Canadian law. Under Uniform Crime Reporting (UCR) code 3715 and section 83.22 of the Criminal Code, this offence targets anyone who knowingly instructs, directly or indirectly, another person to carry out a terrorist activity. It is classified strictly as an indictable offence, reflecting its extreme gravity, and carries a maximum sentence of life imprisonment. Even if no attack ever occurs, the very act of terrorist activity instruction exposes an accused person to the full weight of Canada’s anti‑terrorism regime.
The Legal Definition
Criminal Code, section 83.22(1): Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.
Criminal Code, section 83.22(2): An offence may be committed under subsection (1) whether or not
- (a) the terrorist activity is actually carried out;
- (b) the accused instructs a particular person to carry out a terrorist activity;
- (c) the accused knows the identity of the person whom the accused instructs to carry out a terrorist activity; or
- (d) the person whom the accused instructs to carry out a terrorist activity knows that it is a terrorist activity.
(See: Criminal Code, s. 83.22)
In plain English, section 83.22 makes it a crime to give orders, directions, or guidance intended to have someone commit a terrorist activity. The person does not need to know who, exactly, will carry out the act, whether the act is ever completed, or even whether the person receiving the instruction understands it is terrorism. What matters is that the accused knowingly issues instructions connected to a terrorist activity as defined in section 83.01(1) of the Criminal Code (s. 83.01).
“Terrorist activity” itself is a complex, technical term. It includes certain offences linked to international anti‑terrorism treaties, as well as violent conduct (or serious threats and disruptions) carried out for a political, religious, or ideological purpose, with the intention of intimidating the public or compelling a government or organization to act or refrain from acting. This means terrorist activity instruction covers leaders, planners, recruiters, or ideologues who provide directives, even in coded or indirect ways, to move an attack or campaign forward.
Penalties & Sentencing Framework
- Classification: Indictable offence only (no summary or hybrid option)
- Mandatory minimum penalty: None
- Maximum penalty: Life imprisonment
- Attempt / incomplete plots: Same offence even if no terrorist activity is ultimately carried out
- Attorney General’s consent: Required to commence proceedings for terrorism offences (see s. 83.24)
Unlike many offences where the Crown can choose between summary and indictable procedures, section 83.22 is purely indictable. This ensures that prosecutions proceed through the more formal superior court process and reflects Parliament’s judgment that instructing terrorism is among the gravest forms of criminality.
Although the maximum penalty is life imprisonment, Parliament has not imposed a mandatory minimum sentence. This gives sentencing judges flexibility to tailor punishment to the specific facts: the nature of the intended terrorist activity, the offender’s role in a broader organization, the level of planning and sophistication, and any mitigating factors such as age, mental health, or evidence of disengagement from extremism. At the same time, appellate courts have repeatedly emphasized that terrorism offences, particularly leadership and direction roles, generally attract very severe custodial sentences to achieve denunciation and deterrence.
General sentencing principles in section 718 of the Criminal Code apply. Courts must impose a sentence that is proportionate to the gravity of the offence and the offender’s degree of responsibility. For terrorism offences, denunciation and deterrence are usually dominant. Even where no actual bombing or attack occurred, instructing others to attempt such acts is treated as a profound threat to public safety and national security.
Common Defenses
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Mental disorder defence (section 16)
Under section 16, a person is not criminally responsible if, at the time of the act, they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act or of knowing that it was wrong. In the context of terrorist activity instruction, this might apply where an accused’s psychiatric condition fundamentally distorted their understanding of reality or of the moral and legal wrongfulness of directing an attack. Because the offence requires the accused to act knowingly, any mental disorder that prevents formation of this level of awareness can negate criminal responsibility. The burden (on a balance of probabilities) lies with the party raising the defence, and if successful, the verdict is “not criminally responsible on account of mental disorder” (NCRMD), leading to a disposition under provincial/territorial review board oversight rather than a traditional sentence.
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Compulsion / duress (section 17 – limited application)
Section 17 provides a statutory excuse where a person commits an offence under threats of immediate death or bodily harm from someone present when the offence is committed, provided certain conditions are met. In theory, an individual who instructs a terrorist activity under direct, immediate threat from a superior within a terrorist organization might raise duress. However, the defence is narrow. The threats must be immediate, the accused must have no safe avenue of escape, and they cannot be part of a conspiracy or association that placed them in a position of expected compulsion. In terrorist cases, courts are often skeptical when an accused voluntarily joined a violent extremist group and later claims duress for conduct consistent with the group’s aims. While terrorism offences are not explicitly listed among the crimes excluded from section 17, the extreme gravity of instructing potential mass‑casualty acts means courts will scrutinize such claims very closely.
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Automatism and other common law excuses
By virtue of section 8(3) (which preserves common law excuses that are not inconsistent with the Code), rare defences like non‑insane automatism are theoretically available. To succeed, the accused must show their actions were involuntary (for example, due to a dissociative state not amounting to a mental disorder). In the terrorism context—where instructing typically involves planning, communication, and ideological motivation—such a defence will seldom fit the facts, but it remains conceptually possible.
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Charter-based defences (procedure and evidence)
Accused persons may challenge how evidence was obtained, invoking their rights under the Canadian Charter of Rights and Freedoms. For instance, if police gathered communications showing terrorist activity instruction through unlawful wiretaps or searches contrary to sections 7, 8 or 10 of the Charter, the defence can seek exclusion of that evidence under section 24(2). Similarly, unreasonable delays or abusive state conduct can support stays of proceedings or other remedies. These defences do not claim the conduct is lawful, but rather that the trial cannot fairly proceed or that the impugned evidence should not be used.
Real-World Example
Imagine a leader of a terrorist group instructing members to carry out a bombing attack in Canada. They hold encrypted online meetings, distribute plans for target locations, and assign different members to acquire explosives, scout sites, and prepare escape routes. Before any attack occurs, police intercept communications and arrest the leader and several group members.
In this scenario, the leader’s conduct squarely fits section 83.22. The terrorist activity instruction is clear: they knowingly directed others to carry out a politically or ideologically motivated bombing designed to intimidate the public and endanger lives. Under section 83.22(2), it does not matter that the bombing was prevented, that some operatives did not yet know the full nature of the plan, or that the leader may not have known exactly which individual would place the device. Police would lay terrorism charges, and with the required consent of the Attorney General, the Crown would proceed by indictment in superior court. If convicted, the leader would face a potential life sentence, with the actual term depending on the depth of their involvement, prior criminal history, and any aggravating or mitigating factors.
Record Suspensions (Pardons)
A conviction for instructing to carry out terrorist activity results in a permanent criminal record unless and until a record suspension (formerly called a pardon) is granted by the Parole Board of Canada. As this is a serious indictable offence with a maximum punishment of life imprisonment, the standard federal policy is that an individual may generally only apply for a record suspension 10 years after completing all aspects of their sentence (custody, parole, probation, and payment of any fines or surcharges). In practice, terrorism offences face intense scrutiny at the Parole Board stage: factors such as the ideological nature of the crime, any ongoing security concerns, and the person’s demonstrated rehabilitation will be examined closely. A record suspension is never guaranteed, and for a conviction as grave as terrorist activity instruction, it may be particularly difficult to obtain.
Related Violations
- Participation in Activities of Terrorist Group (e.g., Criminal Code, s. 83.18)
- Facilitation of Terrorist Activity (e.g., Criminal Code, s. 83.19)
- Terrorist Financing (e.g., Criminal Code, ss. 83.02–83.03)
These related offences often arise from the same pattern of conduct as terrorist activity instruction and may be charged together, reflecting different roles individuals play within terrorist organizations—support, facilitation, financing, participation, and leadership or direction.