By John Gilmour, March 25, 2025
The fentanyl crisis across North America is all too real. As part of a broader strategy to combat its spread in the US, in February the Department of State announced that eight international drug cartels and transnational criminal organizations deemed to control most of the illegal traffic traversing the southern border of the United States were listed as “Foreign Terrorist Organizations” and “Specially Designated Global Terrorist Groups.” The terrorist designation denies listed groups access to the US financial system and the resources they need to carry out illegal operations. All property and interests in property of those designated that are in the US or that are in possession or control of American citizen are blocked, and people in the US are generally prohibited from engaging in transactions with them. Non-US citizens associated with the listed entities are also restricted from entering the US.
While the financial sanctions associated with the US listing regimes are well articulated, being listed as “foreign” or “global” terrorist organization also enables the Trump administration to unilaterally apply direct or covert military operations against listed cartels through drone strikes or special forces intervention into other countries without permission from the respective governments, actions President Donald Trump has indicated he is prepared to undertake as part of the enhanced militarization of the US border with Mexico. (While US agencies track and monitor groups or individuals engaged in domestic terrorist activities, there is no official listing of “domestic” terrorist groups in the United States, primarily for First Amendment reasons.)
Following up on two telephone conversations with Trump on February 3, 2025, then Prime Minister Justin Trudeau also committed to list specific drug cartels as terrorist entities under Canada’s terrorist listing regime as part of a broader communication strategy to assure the US that the Canadian government takes American border concerns seriously. On February 20, Ottawa officially listed seven cartels as terrorist entities in Canada. At the time, Minister of Public Safety David McGuinty stated Canada made its decision independently of the US. This statement strains credibility, as the process to identify and approve the listing of a terrorist entity typically takes months of fact-checking and consultation, not less than three weeks.
Ottawa most likely made a political decision, linked to assuaging US administration concerns related to the border specifically, and other policy issues generally.
The move raises key questions, including: Do drug cartels meet the definition of being a terrorist group or engaging in terrorist activities as defined in Canada’s Criminal Code? From an investigative or enforcement perspective, does the listing benefit law enforcement or national security agencies? If so, then how? Or is the listing merely symbolic?
At first blush this may seem like a positive step, demonstrating the ability of Canadian officials to work in lockstep with US law enforcement and national security counterparts. Other than offering the possibility of using Canadian special forces to take out cartel leadership, the impact of being listed within the Canadian regime is much the same as the US, focusing mostly on financial sanctions. But in reality listing these entities as terrorists only serves as evidence of the disconnect between the policy and law enforcement communities in Canada.
The definitional challenge
In order to be listed as a terrorist group or individual, there must be reasonable grounds to believe an entity:
- Has knowingly carried out, attempted to carry out, participated or facilitated a terrorist activity or:
- Is knowingly acting on behalf of, at its direction of, or in association with an entity that has knowingly carried out, attempted to carry out, participated in of facilitated a terrorist activity.
The key wording here is what constitutes terrorist activity, and Canada’s Criminal Code is very specific in this regard. As in most legal issues, “words matter.” But first, a little history lesson.
In the immediate aftermath of the 9/11 terror attacks, when legal scholars and practitioners were pondering how to define “terrorism” in the Criminal Code, they gave special attention to how terrorism could be conceptually differentiated from other forms of crime. After all, the Criminal Code already addressed attributes of terrorism, including kidnapping, murder, bombings, assassinations, etc. As part of this legal construct, government lawyers determined how the Criminal Code defined terrorism activity. In addition to including a number of terrorist activities already identified by the United Nations Conventions on Terrorism (crimes against aviation and maritime activities, kidnappings, financing, bombings), the federal government identified three key elements that must apply to fit the “terrorist activity” definition:
- Motivation: It is considered terrorist activity if an act is committed “in whole or in part for a political, religious or ideological purpose, objective or cause.”
- Purpose: A terrorist act is committed “in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act.”
- Specific acts: The Criminal Code then goes on to define a number of different acts tied to the motivation and purpose clause: An act that causes death or serious bodily harm, endangers a person’s life, causes a serious risk to the health or safety of the public or any segment of the public, causes substantial property damage, whether to public or private property, causes serious interference with or serious disruption of an essential service, facility or system.
The Criminal Code then goes on to identify a number of facilitation-related activities linked to terrorist activities.
The motivation clause is of special interest. As suggested by the Criminal Code, the motivation behind terrorism groups typically originates with some sort of ideological “ism” that most scholars agree is ultimately politically driven. This differs significantly from transnational or organized crime, including drug cartels, whose motivation is driven by profit, not any form of ideology or politics. Furthermore, when it comes to the purpose clause, organized crime syndicates prefer to operate in the shadows and tend to keep a low profile. Conversely, terrorist groups are typically very vocal about what their intentions are or what they seek to accomplish. One simply has to access the media site of any known terrorist group for evidence of this. Typically, organized crime is not out to make wholesale changes to the structure of governments or society. Again, legal practitioners and scholars made a conscious effort to separate the concept of “terrorist activity” from activities associated with organized crime on the basis of this understanding. Consequently, there is more than a compelling argument that drug cartels do not meet the necessary definitional thresholds associated with what constitutes “terrorist activity.”
Will the listing enable law enforcement in Canada?
Both the Criminal Code, in general, and the Controlled Drugs and Substances Act, specifically, offer law enforcement several avenues for combatting drug cartels. One can only assume law enforcement agencies have already been applying the investigative measures and sanctions captured in these statutes for the last several decades.
To carry out their illegal activities, the cartels also need established domestic partners to help them set up shop. Listed cartels are networking with other criminal networks in Canada – biker gangs, Chinese triads, Iranian criminal networks, as a result. So where does government draw the line? Under the same rationale the seven groups are listed, are we going to list the Hells Angels or other criminal organizations as terrorist groups given their established relationships with the newly listed entities? If other linked criminal networks are deemed terrorist groups, does this not undermine or dilute the original intent of differentiating terrorist organizations from other forms of criminal activity? Will the terrorism provisions of the Criminal Code compete or conflate with the investigative and enforcement provisions of the Controlled Drugs and Substances Act, especially when it comes to street-level possession and trafficking by mid-to-low-level individuals in the distribution network who have no formal connection to the listed entities? Will they also be charged under terrorist provisions of the Criminal Code as opposed to the existing provisions of the Controlled Drugs and Substances Act? Where do you draw the terrorist distinction between cartel “kingpins” and lower-level operatives?
In addition to the sorts of violence associated with the drug trade that is already covered off in the Criminal Code, s. 462 deals with the forfeiture of the proceeds of criminal activity. Meanwhile, the provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the mandate of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) would already seem to provide the mandate and means for the enforcement of drug trade financing – even though the scope of the money laundering challenges in Canada, linked to the drug trade, dwarf those related to operations associated with terrorist financing.
There is a suggestion in listing-related information provided by the government that charges may apply to terrorist-related travel if somebody is seeking access to Canada with a known affiliation to a listed terrorist group. Under s. 83.18. (3) (d), of the Criminal Code, it is an offence to enter or remain in any country for the benefit of, at the direction of or in association with a terrorist group. So, this is one positive benefit derived from the listing effort. This is affirmed by s. 34(1) of the Immigration and Refugee Protection Act (IRPA) that states a permanent resident or a foreign national is inadmissible on security grounds for engaging in terrorism. But to make these provisions work, an individual must be a known associate of the listed drug cartels, obviously a product of previous investigations not necessarily tied to a group’s listing. Not something they would advertise in any event, consistent with operational obligation to keep things on the down-low.
Importantly, it is unknown whether listing organized criminal groups as terrorists creates an expectation the Canadian Security Intelligence Service (CSIS) will now be obliged to spread its already thin resources to investigate organized crime, something it has rarely if ever done. While section 2 of the CSIS Act does not in fact reference terrorism specifically as something that constitutes a threat to the security of Canada, it does identify espionage, sabotage, violence in support of political, religious, or ideological objectives (we see those words again), or what would be considered subversion or sedition. All said threats are politically motivated, not profit motivated. Its would be a stretch to say section 2 references threats constituting “foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada” apply to the cartels, but that argument can go either way. In any event, CSIS officers are not trained to investigate and analyze organized crime activity. And if CSIS is obliged to expand its investigations into this area, it will only run headlong into the intelligence-to-evidence conundrum that has bedeviled the relationship between the intelligence and law enforcement communities since the Air India disaster of 1985.
The purposes of listing criminal cartels as terrorist organizations in Canada and the US are totally distinct. The latter now has policy coverage to take direct or covert military action against the cartels if it so chooses. Canada gets to say, “Me too!”, but without any real consideration to what tangible benefits the listings will bring (or the challenges they create for Canadian security agencies). Furthermore, to suggest this initiative was undertaken independent of parallel initiatives in the United States is, as the Temptations used to sing “A million miles away from reality.”
Dr. John Gilmour is a senior fellow at the Macdonald-Laurier Institute. He is an instructor on terrorism, counterterrorism, and intelligence with the University of Ottawa’s Professional Development Institute and Carleton University’s Norman Paterson School of International Affairs (NPSIA). He served for 37 years in the federal government with Transport Canada, the Security and Intelligence (Operations) section of the Privy Council Office, and the Canadian Security Intelligence Service (CSIS).
