January 30th, 2013
On 14 December 2012, the Supreme Court of Canada (SCC) unanimously affirmed in R v Khawaja (2012 SCC 69) that the terrorism laws in Part II.1 of the Criminal Code are constitutional. Mohammad Momin Khawaja, the first person charged under this new section, assailed the provision on two constitutional grounds. He argued that it violates sections 7 and 2(b) of the Charter because it is overbroad and prohibits expressive activity, respectively. By dismissing both arguments, the SCC has given a constitutional pass to one of Parliament’s primary legislative responses to terrorism in the post-911 era.
A homegrown terrorist, thwarted
Mr. Khawaja, a computer programmer born in Canada, was arrested in 2004 and charged under the new terrorism section of the Code. In the years leading up to his arrest, Mr. Khawaja became extremely interested in Osama bin Laden and the “jihad” against Westerners that he promoted.
In an effort to get involved, Mr. Khawaja made contacts with terrorists based in London, UK. As his relationships with these contacts deepened, Mr. Khawaja became progressively more involved in operations. He travelled to Pakistan to attend a terrorist training camp, provided his terrorist contacts with money and SIM cards, and even began building a detonator as part of a fertilizer-bomb plot aimed at London.
Mr. Khawaja was found guilty both at trial and on appeal to the Ontario Court of Appeal (ONCA).
There were three grounds of appeal to the SCC: (1) The terror provisions in the Code are unconstitutional; (2) the terror provisions were applied incorrectly; (3) ONCA’s imposition of a life sentence was unreasonable.
The SCC rejected all three arguments. This post will only discuss the constitutionality of the terror provisions.
Overbroad? Not with a mens rea this high
The first constitutional challenge to the terror provisions in the Code was brought in the companion appeal (Sriskandarajah v United States of America (2012 SCC 70)), but the SCC decided to consider all the constitutional questions in this case.
Two provisions were challenged as being overbroad: the definition of “terrorist activity” in section 83.01(1) and the prohibition of participation in terrorist activity in section 83.18(1). The impugned parts of these provisions read as follows:
(1) “Terrorist activity” means
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause…
(1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
The appellants in Sriskandarajah argued that these provisions are overbroad because their combined effect is to criminalize behavior that carries no risk of harm and is not closely connected to Parliament’s objective of preventing terrorist activity. They argue that participation in legitimate, innocent, and charitable activities carried out by a terrorist group is an example of behavior that could be captured by these provisions.
As it is a principle of fundamental justice that laws not be overbroad, the appellants argued that the provisions violate section 7 of the Charter.
The SCC begins its analysis by determining the scope of the law. The Court notes that the purpose of the terrorism section of the Code is to “’provide means by which terrorism may be prosecuted and prevented’ … not to punish individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute to a terrorist activity.”
The SCC holds that the words “for the purpose” in section 83.18 import a high mens rea requirement of subjective intent to assist a terrorist group, and that this threshold hives off the innocent activities cited by the appellants’ hypothetical: “The effect of this heightened mens rea is to exempt those who may unwittingly assist terrorists or who do so for a valid reason.”
The appellants countered that, even with this high mens rea requirement, section 83.18 could capture activity that is intended to enhance the abilities of a terrorist group but is essentially harmless. However, the SCC finds that Parliament did not intend to criminalize conduct that carries no risk of harm. The SCC holds that the potential 10-year prison sentence and significant stigma that attaches to this crime indicates that the provision is intended to “criminalize conduct that presents a real risk to Canadian society.”
Therefore, the SCC finds that the scope of section 83.18 is not overbroad because it covers only that conduct which is both specifically intended to contribute to a terrorist activity and carries with it a significant risk of harm to Canadian society.
The second step of the SCC’s analysis focuses on whether the provisions are broader than is necessary to achieve Parliament’s objective of preventing and prosecuting terrorists. Echoing the first stage of the analysis, the SCC holds that the scope of conduct captured by section 83.18 is significantly narrowed by the high mens rea requirement of specific intent. Considering this limitation, the SCC finds that the provision is not broader than necessary.
As such, the Court unanimously holds that the provisions do not violate section 7 of the Charter because they are not overbroad.
The violence exception saves the “motive clause”
The second constitutional argument advanced by the appellants in Sriskandarajah is that the so-called “motive clause” of section 83.01(1)(b)(i)(A), which defines “terror activity” as being done for “a political, religious or ideological purpose,” violates section 2(b) of the Charter because it criminalizes expressive activity.
The SCC quickly disposes of the appellants’ argument that the purpose of the law infringes section 2(b): “Most of the conduct caught by the terrorism provisions in Part II.1 of the Criminal Code concerns acts of violence or threats of violence. As such, the conduct falls outside the protection of s. 2(b) of the Charter.”
The appellants also argued that section 83.01(1)(b)(i)(A) infringes section 2(b) because it creates a “chilling effect” on expressive activity. However, the SCC agreed with ONCA that there is no evidence to support this claim and that this would be an inappropriate case to infer a “chilling effect” from the facts.
Therefore, the SCC holds that the “motive clause” in section 83.01(1)(b)(i)(A) of the Code does not infringe the right of freedom of expression in section 2(b) of the Charter.
He said, she said
One possible problem with the SCC’s reading of section 18.13, the provision prohibiting participation in terrorist activity, is that terrorists could skirt the boundaries of the law by participating in activity that is ostensibly harmless but carries with it an indirect risk of harming Canadian society. For example, the charity hypothetical raised by the appellants was dismissed by the SCC because this activity would presumably be for an innocent purpose.
However, the nature of some terrorist organization’s charitable arms could be in part devoted to the purpose of increasing the legitimacy of the terrorist organization as a whole. If this was someone’s actual purpose for participating in the charitable arm of a terrorist group, with the ultimate goal of facilitating future attacks, it would be extremely difficult to identify this motivation without documentary evidence of this specific intent. The participant could simply point to the subsidiary group’s charitable purpose and dismiss any suggestion that they were in fact attempting to strengthen the umbrella organization as a whole.
This shows that the law could potentially be used as a shield for terrorists that are smart enough to mask potentially violent purposes in ostensibly innocent garb. This could produce a “he said, she said” scenario between the Crown and accused where the only evidence that someone is participating in terrorist activity is an inaccessible motivation held by the accused.
The courts are not completely unprepared to deal with this possibility. For example, taking judicial notice of any links between charitable organizations and violent terrorist activity could support an inference of specific intent in an appropriate case.
Is it terrorism or not?
In the case of Mr. Khawaja, the evidence overwhelmingly indicated his specific intent of facilitating terrorist activity. However, the higher the level of tradecraft employed by terrorists, the less likely that the threshold of specific intent will be able to be demonstrated. It will be interesting to see how the courts apply the terrorism section of the Code in a less clear-cut case, where an individual’s specific intent could point to two possible motivations: terrorism proper or terrorism-associated non-violent activity.[filed: Criminal Law]