R. v. Khawaja

R. v. Khawaja
Collection
Supreme Court Judgments
Date
2012-12-14
Neutral citation
2012 SCC 69
Report
[2012] 3 SCR 555
Case number
34103
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Karakatsanis, Andromache
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 34103
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555
Date: 20121214
Docket: 34103
Between:
Mohammad Momin Khawaja
Appellant
and
Her Majesty the Queen
Respondent
- and -
Attorney General of Ontario, Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval, Canadian Civil Liberties Association and British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 132)
McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ. concurring)
R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555
Mohammad Momin Khawaja Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Groupe d’étude en droits
et libertés de la Faculté de droit de l’Université Laval,
Canadian Civil Liberties Association and British Columbia
Civil Liberties Association Interveners
Indexed as: R. v. Khawaja
2012 SCC 69
File No.: 34103.
2012: June 11; 2012: December 14.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Freedom of expression — Accused convicted of terrorism offences under Part II.1 of Criminal Code — Whether provisions, in purpose or effect, violate right to free expression — Canadian Charter of Rights and Freedoms, s. 2 (b) — Criminal Code, R.S.C. 1985, c. C‑46, s. 83.01(1) (b)(i)(A).
Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Terrorism offences — Provision criminalizing participation in or contribution to activities of terrorist group — Whether provision broader than necessary to achieve purpose or whether provision’s impact disproportionate — Whether provision contrary to principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C‑46, s. 83.18 .
Criminal law — Appeals — Terrorism offences — Trial fairness — Trial judge finding that clause defining terrorist activity as being for political, religious or ideological purpose unconstitutional — Court of Appeal overturning decision on constitutionality but upholding convictions — Whether Court of Appeal erred in applying curative proviso — Whether convictions unreasonable — Criminal Code, R.S.C. 1985, c. C‑46, ss. 83.01(1) (b)(i)(A), 686(1) (b)(iii).
National security — Terrorism — Sentencing — Totality principle — Accused guilty of terrorism offences sentenced by trial judge to 10 and a half years of imprisonment, with parole eligibility set at 5 years — Court of Appeal substituting sentence of life imprisonment coupled with 24 years of consecutive sentences, with parole eligibility set at 10 years — Whether Court of Appeal erred in overturning sentence.
After becoming obsessed with Osama Bin Laden and his cause, K communicated with an American who eventually pled guilty to providing material support or resources to Al Qaeda and with the leader of a terrorist cell based in London, England, who was convicted along with several co‑conspirators of a plot to bomb targets in the U.K. and elsewhere in Europe. K repeatedly offered them support, provided funds, designed a remote arming device and recruited a woman to facilitate transfers of money. He travelled to Pakistan and attended a small arms training camp, and proposed that a supporter of the terrorist cell be sent to Israel on a suicide mission.
K was charged with seven offences under the Terrorism section of the Criminal Code (Part II.1). He brought a preliminary motion seeking a declaration that several provisions are unconstitutional. The motion judge held that s. 83.01(1) (b)(i)(A), which provides that a terrorist activity must be an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” (the “motive clause”), was a prima facie infringement of s. 2 (a), (b) and (d) of the Charter that could not be justified under s. 1 , and accordingly severed the clause from s. 83.01(1) . At trial, since two of the offences — wanting to cause an explosion with specified consequences at the behest of a terrorist group and possessing an explosive substance with the intent of enabling a terrorist group to endanger others — required knowledge of the U.K. group’s bomb plot, which the Crown had failed to establish beyond a reasonable doubt, the trial judge found K guilty of lesser included offences (working on the development of a detonator and keeping an explosive substance). He also convicted K on five counts which engage ss. 83.03 (providing or making available property or services for terrorist purposes), 83.18 (participating in or contributing to the activity of a terrorist group), 83.19 (facilitating a terrorist activity) and 83.21 (instructing people to carry out an activity for a terrorist group). The judge sentenced K to 10 and a half years in a penitentiary, gave no credit for time served on the basis that that would be incompatible with a denunciatory sentence, and set parole eligibility at 5 years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values. The Court of Appeal held that the motive clause was not unconstitutional and should not have been severed, but dismissed the conviction appeal, applying the curative proviso in s. 686(1) (b)(iii) of the Criminal Code . It dismissed K’s appeal from the sentences, but allowed the Crown’s cross‑appeal and substituted a sentence of life imprisonment on the conviction for building a detonator to cause a deadly explosion. Emphasizing the seriousness of the conduct, it substituted a total of 24 years of consecutive sentences for the remaining counts, to be served concurrently with the life sentence, and set parole eligibility at 10 years instead of 5.
Held: The appeal should be dismissed.
Constitutionality of the Provisions
K challenges the constitutionality of the legislation on the ground that the motive clause would produce a chilling effect on the expression of beliefs and opinions and thus violates s. 2 of the Charter . In their companion appeals (Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609), S and N also claim that the legislation’s purpose violates s. 2 of the Charter . They also challenge the constitutionality of s. 83.18 for overbreadth, under s. 7 of the Charter . For convenience, all these constitutional claims are considered in this appeal.
Section 83.18 does not violate s. 7 of the Charter . A purposive interpretation of the actus reus and mens rea requirements of s. 83.18 excludes convictions (i) for innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity, and (ii) for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. The legitimate purpose of the Terrorism section of the Criminal Code is to provide means by which terrorism may be prosecuted and prevented. This purpose commands a high mens rea threshold. To convict under s. 83.18 , a judge must be satisfied beyond a reasonable doubt that the accused specifically intended to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. There may be direct evidence of this intention. Or the intention may be inferred from evidence of the knowledge of the accused and the nature of his actions. The use of the words “for the purpose of” in s. 83.18 requires a subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity. The accused must specifically intend his actions to have this general effect. Further, the actus reus of s. 83.18 does not capture conduct that discloses, at most, a negligible risk of enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. The scope of the provision excludes conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. The determination of whether a reasonable person would view conduct as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity hinges on the nature of the conduct and the relevant circumstances. When the tailored reach of s. 83.18 is weighed against the objective of the law, it cannot be said that the selected means are broader than necessary or that the impact of the section is disproportionate.
The purpose of the law does not infringe freedom of expression. While the activities targeted by the Terrorism section of the Criminal Code are in a sense expressive activities, most of the conduct caught by the provisions concerns acts or threats of violence. Threats of violence, like acts of violence, are excluded from the scope of the s. 2 (b) guarantee. Moreover, the particular nature of the conduct enumerated in s. 83.01(1) (b)(ii)(A), (B), (C) and (D) justifies treating counselling, conspiracy or being an accessory after the fact to that conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents. As such, the conduct falls outside the protection of s. 2 (b) of the Charter . However, it is not necessary to decide whether counselling, conspiracy or being an accessory after the fact fall outside the s. 2 (b) guarantee as a general matter. Read as a whole and purposively, s. 83.01(1) (b)(ii)(E), which is directed to acts that intentionally interfere with essential infrastructure without which life may be seriously disrupted and public health threatened, is also confined to the realm of acts and threats of violence. However, it cannot be ruled out that s. 83.01(1) (b)(ii)(E) might in some future case be found to capture protected activity. In such a case, the issue would be whether the incursion on free expression is justified under s. 1 of the Charter .
In this case, it is impossible to infer, without evidence, that the motive clause (s. 83.01(1) (b)(i)(A)) will have a chilling effect on the exercise of s. 2 freedoms. The impugned provision is clearly drafted in a manner respectful of diversity, as it allows for the non‑violent expression of political, religious or ideological views (s. 83.01(1.1)).
Application of the Provisions in This Appeal and Sentencing
The re‑insertion of the motive clause by the Court of Appeal did not make K’s trial and convictions unfair. The trial judge made a specific finding that the motive component of the definition of terrorist activity had been proved beyond a reasonable doubt, which suffices to fully support the motive requirement of the convictions. Also, the evidence of motive, and K’s knowledge that the motive was shared by him and the terrorist cell, was overwhelming and essentially undisputed. There is no air of reality to K’s statement that he could have, or would have, testified to raise a reasonable doubt on motive, had the clause not been struck. In essence, no prejudice flowed from the re-insertion of an essential element of the offence on appeal.
The uncontradicted evidence before the trial judge established beyond a reasonable doubt that K’s conduct did not fall within the armed conflict exception in s. 83.01(1) in fine, which provides that terrorist activity does not include acts or omissions committed during an armed conflict in accordance with international law. The Crown bears the burden of proving beyond a reasonable doubt that the acts alleged against an accused fall within the definition of terrorist activity, and any reasonable doubt must be resolved in the accused’s favour. However, since the armed conflict exception functions as a defence, the accused must raise it and make a prima facie case that it applies. Here K could not do so, as there was no evidential foundation to support its applicability. The trial judge expressly found that K knew that the terrorist group’s activities extended beyond the armed conflict in Afghanistan and that he supported the terrorist objectives, and the evidence is overwhelmingly contrary to the proposition that K’s acts were part of an armed conflict governed by international law. There is no air of reality to the suggestion that K believed that the group intended to act in compliance with international law, or that he cared if it did.
There is no merit to K’s submissions that the convictions are unreasonable. However, the trial judge made critical errors in sentencing. He effectively devalued the seriousness of the appellant’s conduct in a way that was inconsistent with the evidence, and failed to give adequate weight to the ongoing danger K posed to society. While the weight to be given to rehabilitation in a given case is best left to the reasoned discretion of trial judges on a case‑by‑case basis, here the absence of evidence on rehabilitation prospects justified a stiffer sentence than otherwise might have been appropriate. Finally, the heightened gravity of the terrorism offences at issue in this case was sufficient to justify imposition of consecutive sentences running over 20 years, without violating the totality principle. The general principles of sentencing, including the totality principle, apply to terrorism offences.
Cases Cited
Considered: R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; distinguished: R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669; referred to: Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609; Kienapple v. The Queen, [1975] 1 S.C.R. 729; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; United States of America v. Nadarajah (No. 1), 2010 ONCA 859, 109 O.R. (3d) 662; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; R. v. Ahmad (2009), 257 C.C.C. (3d) 199; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Downey, 2010 ONSC 1531 (CanLII); R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
Anti‑terrorism Act, S.C. 2001, c. 41 .
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 7 .
Criminal Code, R.S.C. 1985, c. C‑46 , Part II.1, ss. 83.01(1) “terrorist activity”, “terrorist group”, (1.1), 83.02, 83.03, 83.04, 83.05, 83.18, 83.19, 83.2, 83.21, 83.23, 83.26, 686(1)(b)(iii), 718(c), 718.2, 719.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 137, No. 95, 1st Sess., 37th Parl., October 16, 2001, p. 6165.
Davis, Kevin E. “Cutting off the Flow of Funds to Terrorists: Whose Funds? Which Funds? Who Decides?”, in Ronald J. Daniels, Patrick Macklem and Kent Roach, eds., The Security of Freedom: Essays on Canada’s Anti‑Terrorism Bill. Toronto: University of Toronto Press, 2001, 299.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Supp. Toronto: Carswell, 2007 (loose‑leaf updated 2011, release 1).
Parent, Hugues, et Julie Desrosiers. Traité de droit criminel, t. 3, La peine. Montréal: Thémis, 2012.
Roach, Kent. “Terrorism Offences and the Charter : A Comment on R. v. Khawaja” (2007), 11 Can. Crim. L.R. 271.
Roach, Kent. “The New Terrorism Offences and the Criminal Law”, in Ronald J. Daniels, Patrick Macklem and Kent Roach, eds., The Security of Freedom: Essays on Canada’s Anti‑Terrorism Bill. Toronto: University of Toronto Press, 2001, 151.
United Nations. Security Council. U.N. Doc. S/RES/1373, September 28, 2001.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Cronk JJ.A.), 2010 ONCA 862, 103 O.R. (3d) 321, 271 O.A.C. 238, 273 C.C.C. (3d) 415, 82 C.R. (6th) 122, [2010] O.J. No. 5471 (QL), 2010 CarswellOnt 9672, overturning a constitutional ruling by Rutherford J. (2006), 214 C.C.C. (3d) 399, 42 C.R. (6th) 348, 147 C.R.R. (2d) 281, 2006 CanLII 63685, [2006] O.J. No. 4245 (QL), 2006 CarswellOnt 6551, affirming convictions entered by Rutherford J. (2008), 238 C.C.C. (3d) 114, [2008] O.J. No. 4244 (QL), 2008 CarswellOnt 6364, and varying sentences imposed by Rutherford J. (2009), 248 C.C.C. (3d) 233, [2009] O.J. No. 4279 (QL), 2009 CarswellOnt 6322. Appeal dismissed.
Lawrence Greenspon and Eric Granger, for the appellant.
Croft Michaelson and Ian Bell, for the respondent.
Michael Bernstein, for the intervener the Attorney General of Ontario.
Yan Paquette and Louis‑Philippe Lampron, for the intervener Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Canadian Civil Liberties Association.
Kent Roach and Michael Fenrick, for the intervener the British Columbia Civil Liberties Association.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] The appellant, Mohammad Momin Khawaja, was convicted of five offences under Part II.1 of the Criminal Code, R.S.C. 1985, c. C-46 , the Terrorism section. He faces a life sentence and a concurrent sentence of 24 years of imprisonment, with a 10-year period of parole ineligibility. He appeals on a variety of grounds, which may be summarized as follows: (1) that the provisions in Part II.1 of the Criminal Code under which he was convicted violate the Canadian Charter of Rights and Freedoms and are unconstitutional; (2) that the provisions were misapplied or misinterpreted, resulting in an unfair trial or an unreasonable verdict; and (3) that the Ontario Court of Appeal erred in imposing his sentence.
[2] For the reasons that follow, I would reject each of the contentions of the appellant. The issues in this appeal overlap with some of the issues in the companion appeals of Sriskandarajah and Nadarajah (Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609). For convenience, I will consider all the constitutional issues in these reasons.
II. The Evidence
[3] The facts underlying the offences were largely undisputed. Voluminous email correspondence attested in graphic detail to the appellant’s ideological commitment to violent “jihad” and to his acts in Canada and elsewhere to further jihad-inspired terrorist activities.
[4] While living with his siblings in Canada, the appellant became obsessed with Osama Bin Laden and his cause. The appellant began communicating with other people committed to violence in the name of Islam, some of whom he referred to as “the bros”. He entered into covert email correspondence with Junaid Babar, an American of Pakistani descent who eventually pled guilty in New York City to five counts of providing material support or resources to Al Qaeda. He also communicated extensively with Omar Khyam, the leader of a terrorist cell based in London, England, who was convicted along with several co-conspirators of a plot to bomb targets in the U.K. and elsewhere in Europe.
[5] The appellant repeatedly offered Khyam and Babar support. He gave Khyam money for an explosives operation in the United Kingdom or elsewhere in Europe. He gave Babar cash, supplies and SIM cards so that Babar could contact Khyam when transporting detonators to Europe. He provided funds to support Babar, Khyam and “the bros” in their jihadist efforts. He designed a remote arming device for explosives that he referred to as the “hifidigimonster”, and offered to smuggle it into the U.K. and train the U.K. cell on its use. He recruited a woman in Ottawa to facilitate transfers of money. He also offered to procure night goggles for use by the group.
[6] The appellant travelled to Pakistan alone and with Khyam, and attended Babar’s small arms training camp. He made his parents’ home in Pakistan available to the “bros”. He suggested members of the U.K. group travel to Canada for weapons training. He also proposed to Khyam via email that a supporter of the Khyam group be sent to Israel on a suicide mission.
[7] On March 29, 2004, the RCMP arrested the appellant and searched his house in Orleans, Ottawa. They seized the “hifidigimonster”, electronic components and devices, parts suitable for constructing more remote arming devices, documents corroborating the assembly process for the device, instructional literature and tools, military calibre rifles and ammunition, other weapons, hard drives, $10,300 in one-hundred dollar bills, military books and jihad-related books. No blasting caps, other detonators or explosives components were discovered.
III. Judicial History
[8] By direct indictment, the appellant was charged with seven offences under the Terrorism section of the Criminal Code . The appellant brought a preliminary constitutional motion (allowed in part) and a motion for a directed verdict of acquittal (dismissed). He elected to be tried by judge alone, and was convicted on five counts and found guilty of two included offences.
A. The Pre-trial Charter Challenge (2006), 214 C.C.C. (3d) 399
[9] Prior to trial, the appellant sought a declaration that several terrorism provisions of the Criminal Code (ss. 83.01(1) , 83.03 (a), 83.18 , 83.18(1) , 83.18(3) (a), 83.19 , 83.2 and 83.21(1) ) are unconstitutional. The motion judge found that the impugned provisions are neither unconstitutionally vague nor overbroad.
[10] However, the motion judge held that s. 83.01(1) (b)(i)(A), which provides that a terrorist activity must be an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” was a prima facie infringement of s. 2 (a), (b) and (d) of the Charter . He found that the effect of this “motive clause” would be “to focus investigative and prosecutorial scrutiny on the political, religious and ideological beliefs, opinions and expressions of persons and groups”, which in turn would produce a chilling effect on the expression of beliefs and opinions (para. 58). He found that the infringement could not be justified under s. 1 and accordingly severed the motive clause from s. 83.01(1) .
B. The Trial (2008), 238 C.C.C. (3d) 114
[11] The trial proceeded on the basis that the motive clause was severed from the legislation. The trial judge found the appellant guilty of seven offences.
[12] The trial judge held that the first two counts (wanting to cause an explosion with specified consequences at the behest of a terrorist group and possessing an explosive substance with the intent of enabling a terrorist group to endanger others) required knowledge of the U.K. group’s bomb plot, which the Crown failed to establish beyond a reasonable doubt. Since defence counsel had admitted that there was evidence of lesser included offences, the trial judge found the appellant guilty of working on the development of a detonator contrary to s. 81(1) (a) of the Criminal Code and keeping an explosive substance contrary to s. 81(1) (d). He conditionally stayed proceedings on the latter count, under the Kienapple principle (Kienapple v. The Queen, [1975] 1 S.C.R. 729). He held that the remaining five counts were not restricted by a requirement that the appellant know the U.K. group was planning a bomb plot. His findings with respect to each count can be summarized as follows:
Count 3: The appellant participated in a terrorist group by taking weapons training at the camp in northern Pakistan for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity;
Count 4: The appellant deceived a young woman into acting as a conduit to pass funds for the purpose of enhancing the ability of the Khyam group to facilitate or carry out a terrorist activity;
Count 5: The appellant made his parents’ residence in Pakistan available for the use of the Khyam group in pursuit of a common objective of violent jihad, thereby making property available for the purpose of facilitating a terrorist activity or for the benefit of a terrorist group;
Count 6: Everything the appellant did in relation to developing the remote detonator device amounted to participating in or contributing to the activity of a terrorist group for the purpose of enhancing the group’s ability to carry out a terrorist activity; and
Count 7: The appellant knowingly facilitated terrorism by, inter alia, transporting money, a medical kit, SIM cards and invisible ink pens to Babar; offering to acquire equipment; suggesting that Khyam and another group member come to Canada for shooting practice; offering a course in electronics; suggesting that a third party be sent on a suicide mission to Israel; discussing putting his computer skills to work to assist “the bros”.
[13] The trial judge found that the U.K. cell qualified as a terrorist group within the meaning of the Terrorism section of the Criminal Code . On the basis of judicial notice of facts available, inter alia, from documents on the United Nations website, he held that the insurgents’ conduct in Afghanistan is terrorist activity, because it results in death and destruction and it is intended to intimidate the Afghan population and diminish support for the legitimate government. Consequently, by preparing for and supporting the insurgency against the coalition forces in Afghanistan, the U.K. cell was facilitating terrorist activity and qualified as a terrorist group. The trial judge held that the appellant “knew he was dealing with a group whose objects and purposes included activity that meets the Code definition of terrorist activity” (para. 131).
[14] The trial judge refused to apply the exception for armed conflict in the definition of “terrorist activity” in s. 83.01(1) in fine. Pursuant to that subsection, terrorist activity does not include acts or omissions committed during an armed conflict in accordance with international law. The trial judge found that neither the appellant nor any member of the U.K. cell was engaged in armed conflict.
C. The Sentence (2009), 248 C.C.C. (3d) 233
[15] The trial judge took into account the mitigating personal circumstances raised by the appellant, but noted that there was no information available respecting his attitude or expected future behaviour, because he had refused to be interviewed for a pre-sentence report. The trial judge held that while terrorism sentencing must emphasize denunciation, deterrence and protection of the public, the potential for rehabilitation could not be overlooked. He refused to order a life sentence similar to those given to the cell members in the U.K. because he was not persuaded that the appellant was a similar offender in similar circumstances, as opposed to just a willing helper and supporter.
[16] The trial judge sentenced the appellant to 10 and a half years in a penitentiary. He gave no credit for time served on the basis that that would be incompatible with a denunciatory sentence. He set parole ineligibility at 5 years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.
D. The Court of Appeal, 2010 ONCA 862, 103 O.R. (3d) 321
[17] The Court of Appeal dismissed the appellant’s conviction appeal. However, the Court of Appeal held that the trial judge had erred in finding the motive clause unconstitutional. It stated that expressive activity that takes the form of violence is not protected by s. 2 (b) of the Charter , since violence is destructive of the very values that underlie the right to freedom of expression. For the same reason, threats of violence are not protected by s. 2 (b). Thus, the legislation limits a form of expression that is destructive of the principles underlying freedom of expression and, consequently, cannot constitute an infringement of s. 2 (b). Moreover, the Court of Appeal held that the trial judge’s conclusion that the impugned provisions had a chilling effect was founded entirely on speculation, rather than on evidence to the effect that members of the community actually felt constrained in the expression of their beliefs or opinions.
[18] The Court of Appeal found, as had the trial judge, that the armed conflict exception did not apply to the appellant’s conduct. There was no evidence that the appellant or the insurgents in Afghanistan undertook armed conflict in accordance with international law. The record showed that the appellant himself viewed the violent jihad he was committed to as unlawful. Moreover, the appellant’s actions were directed at supporting terrorist activities inside and outside of the forum of conflict in Afghanistan.
[19] The Court of Appeal stated that the trial judge did not err in taking judicial notice of the nature of hostilities in Afghanistan. Further, the verdicts reached by the trial judge were amply supported by the record at trial and were reasonable.
[20] Finally, the Court of Appeal dismissed the appellant’s appeal from the sentences, but allowed the Crown’s cross-appeal. The Court substituted a sentence of life imprisonment on the conviction for building a detonator to cause a deadly explosion. Emphasizing the seriousness of the conduct, it substituted a total of 24 years of consecutive sentences for the remaining counts, to be served concurrently with the life sentence, and set parole ineligibility at 10 years instead of 5.
IV. The Legislation
[21] The Anti-terrorism Act, S.C. 2001, c. 41 , part of which now forms Part II.1 of the Criminal Code , was passed in 2001, in the aftermath of the Al Qaeda attacks in the United States and Resolution 1373 of the United Nations Security Council, which called on member states to take steps to prevent and suppress terrorist activity (U.N. Doc. S/RES/1373). The purpose of the legislation is to provide a means by which terrorism may be prosecuted and prevented: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248.
[22] While the immediate impetus for the legislation may have been concern following the terrorist attacks of September 11, 2001, the legislation has a much broader history and context. As the recitals to the U.N. Resolution make clear, these events were part of an unfolding and escalating international problem. Canada, which had experienced the Air India and Narita bombings, was no stranger to this problem. The legislation is not emergency legislation, but a permanent part of the criminal law of this country: Application under s. 83.28 of the Criminal Code (Re), at para. 39.
[23] The appellant says that the definition section of the legislation, s. 83.01(1) , offends Charter guarantees, notably freedom of religion and freedom of expression. I will at this point describe in general terms the definitions of “terrorist activity” and “terrorist group”, and the offences that the provisions create. The full text of the relevant provisions is reproduced in the Appendix.
[24] “Terrorist activity” is defined (i) as an act or omission committed inside or outside Canada that, if committed inside Canada, would constitute one of the Criminal Code offences enumerated in s. 83.01(1) (a), or (ii) as an act or omission, a conspiracy, an attempt or threat to commit any act or omission, counselling an act or omission and being an accessory after the fact to an act or omission, that causes one of the consequences described in s. 83.01(1) (b)(ii)(A) to (E). These consequences are: causing death or serious bodily harm to a person by the use of violence (clause (A)); endangering a person’s life (clause (B)); causing a serious risk to the health or safety of the public or any segment thereof (clause (C)); causing substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in clauses (A) to (C) (clause (D)); or causing serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C) (clause (E)). However, conduct otherwise captured by s. 83.01(1) (b)(ii)(A) to (E) does not constitute “terrorist activity” if it falls within the exception for armed conflict conducted in accordance with international law (s. 83.01(1) in fine).
[25] Furthermore, the act or omission that causes one of the consequences enumerated in 83.01(1)(b)(ii)(A) to (E) only constitutes “terrorist activity” if it is accompanied by the requisite mental state. The act or omission must be done with the intention of causing one of the enumerated consequences. In addition, the act or omission must be done with the ulterior intention of intimidating the public or a segment of the public as regards its security, or to compel a person, a government or an organization — whether inside or outside of Canada — to do or refrain from doing any act (s. 83.01(1) (b)(i)(B)). Finally, the act or omission must be done in whole or in part for a political, religious or ideological purpose, objective or cause (s. 83.01(1) (b)(i)(A)).
[26] “Terrorist group” is defined as a person or group that has as one of its purposes or activities the facilitation or carrying out of any “terrorist activity”, or a person or group identified in a regulation adopted under s. 83.05.
[27] Based on these definitions, the legislation goes on to create a number of offences, including:
- Providing or making available property or services for terrorist purposes (s. 83.03) (maximum term of imprisonment of 10 years);
- Participating in or contributing to the activity of a terrorist group (s. 83.18 ) (maximum term of imprisonment of 10 years);
- Facilitating a terrorist activity (s. 83.19 ) (maximum term of imprisonment of 14 years);
- Instructing people to carry out an activity for a terrorist group (s. 83.21) (liable to imprisonment for life).
[28] The counts on which the appellant was convicted variously engage all of these offences.
[29] The terrorism offences attract specific sentencing provisions. Pursuant to s. 83.26, sentences for terrorism offences must be served consecutively. Further, s. 718.2 provides that the commission of a terrorism offence is to be considered an aggravating factor for the purposes of sentencing. Finally, I set out the provisions of the Charter relevant to the appeal. The overbreadth argument advanced in the companion appeals is grounded in s. 7 of the Charter :
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[30] The appellant in this appeal bases his argument that the provisions are unconstitutional on s. 2 of the Charter :
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
[31] Breaches of Charter guarantees can be justified under s. 1 , which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
V. Issues
[32] The issues are as follows:
A. Constitutionality of the provisions;
1. Does s. 83.18 of the Criminal Code violate s. 7 of the Charter ?
(a) The test for overbreadth;
(b) The scope of the law;
(c) The objective of the law;
(d) Are the impugned provisions broader than necessary or is their impact disproportionate?
2. Does the law, specifically the motive clause, infringe s. 2 of the Charter ?
(a) Unconstitutional purpose;
(b) Unconstitutional effect;
3. Conclusion on the constitutionality of the law;
B. Application of the provisions;
1. Did the deletion and subsequent re-insertion of the motive clause make the trial and convictions unfair?
2. Does the armed conflict exception apply?
3. Were the verdicts unreasonable?
C. Did the Court of Appeal err in overturning the sentence imposed by the trial judge and substituting a term of life imprisonment?
[33] The appellant challenges the constitutionality of the legislation only on one ground: that its chilling effect violates s. 2 of the Charter . The appellants in the companion appeals also allege a violation of s. 2 of the Charter , and additionally challenge the constitutionality of s. 83.18 for overbreadth pursuant to s. 7 of the Charter .
VI. Analysis
A. Constitutionality of the Provisions
1. Does Section 83.18 of the Criminal Code Violate Section 7 of the Charter ?
[34] The appellant challenged the provisions under which he was charged as unconstitutional for vagueness and overbreadth on a pre-trial constitutional motion. The trial judge rejected this submission and the appellant does not pursue it before this Court. However, s. 83.18 of the Criminal Code is challenged for overbreadth in the companion appeals. Since all three cases depend on the ultimate constitutionality of the legislation, I propose to consider all the constitutional arguments, including overbreadth, in these reasons.
[35] It is a principle of fundamental justice that criminal laws not be overbroad. Pursuant to s. 7 of the Charter , laws that restrict the liberty of those to whom they apply must do so in accordance with principles of fundamental justice. Criminal laws that restrict liberty more than is necessary to accomplish their goal violate principles of fundamental justice. Such laws are overbroad. The appellants Nadarajah and Sriskandarajah say that the combined effect of the definition of terrorist activity (s. 83.01(1) ) and of the provision prohibiting participation in terrorist activity (s. 83.18 ) results in overbreadth, by criminalizing conduct that creates no risk of harm and is only tenuously connected to Parliament’s objective of preventing terrorist activity.
[36] I will first review the legal test for overbreadth. I will then apply this test to the definition of terrorist activity and the prohibition of participation in terrorist activity.
(a) The Test for Overbreadth
[37] In R. v. Heywood, [1994] 3 S.C.R. 761, this Court explained that a law is overbroad if the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective. In determining overbreadth, a measure of deference must be paid to the means selected by the legislator.
[38] The appellants argue that the law is overbroad because it is grossly disproportionate to the objective it seeks to achieve. The appellants conflate overbreadth and gross disproportionality. Heywood suggested that gross disproportionality was a concept subsumed by overbreadth: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p. 793). However, gross disproportionality seemed to be recognized as a distinct breach of principles of fundamental justice in the marihuana case R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R.