Professor publishes articles on anti-terrorism, Emergencies Act

Co-authored with Leah West and Amarnath Amarasingam, "The Elusive Motive Requirement in Canada’s Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics" appears in Volume 60, of the Osgoode Hall Law Journal. In this article the authors explain why the motive requirement is so in need of refinement and shed light on what differentiates ordinary crime from terrorism. To do so, they offer a comprehensive study of the legislative history behind Canada’s anti-terrorism criminal regime as well as every terrorism judgment, sentencing decision, and jury instruction issued between 2001–2021. The authors find that neither Parliament nor the courts have defined the motive requirement, leaving others to define terrorism as something closer to “we know it when we see it.”

"Threats to the Security of Canada: Same, Same but Different", co-authored with Leah West and Jake Norris for the Manitoba Law Journal, examines the Canadian government's interpretation of the Emergencies Act (EA) and its threshold for declaring a national emergency in response to protest and dissent. Based on evidence presented during a subsequent commission of inquiry and Commissioner Rouleau's final report, the authors analyze the government's legal interpretation of the phrase "threat to the security of Canada" and the inconsistent and ambiguous testimony provided by government officials and Cabinet Ministers. The authors argue that the Commissioner failed to address the most contentious legal arguments offered by the government, particularly the assertion that economic harm can satisfy the requirement for serious damage to property.

Finally, Nesbitt wrote chapter 5, "Formalism and Substance in the Domestic Implementation of Transnational Criminal Law in Canada’s Anti‑terrorism Criminal Regimes" for Transnational and Cross-Border Criminal Law. Written by subject matter experts, each chapter exposes and analyzes a current and pressing issue in this realm and is designed both to serve as a resource for researchers and to provide cutting-edge insight on front-burner issues. The group of authors — made up of prosecutors, defence lawyers, government counsel, academics, and civil society advocates — take on a variety of subjects, including terrorism, financial crime and corruption, jurisdiction, extradition, money laundering, trafficking, maritime enforcement, cross-border evidence-gathering, and the international transfer of prisoners. This unique collection will help to advance general understanding of one of the most pressing public policy issues of our time.