SCC Refuses to Revisit Murder Mens Rea Standard

In the years following the adoption of the Canadian Charter of Rights and Freedoms, the courts in Canada used their new-found power under section 7–the right to life, liberty and security–to scrutinize objective standards of mens rea. This resulted in a push for more subjective standards, under the premise that objective standards threatened to punish the morally innocent, as they did not require the accused to possess a positive state of mind such as intention or foresight.  This scrutiny was particularly intense in the context of high-stigma crimes such as murder.

This perspective on objective standards led the Supreme Court of Canada (SCC) to rule that the felony-murder provisions of section 213 (now section 230) of the Criminal Code were unconstitutional in R v Vaillancourt, [1987] 2 SCR 636, and R v Martineau, [1990] 2 SCR 633, and that a mens rea of subjective foresight of death is constitutionally required for a  murder conviction.

In R v Shand, 2011 ONCA 5, the debate regarding the constitutionality of the Code’s murder provisions resurfaced.  In Shand, the accused was charged with second-degree murder under section 229(c) when, in the course of a robbery, their handgun accidentally discharged and killed the victim.  The accused was convicted at trial and granted appeal.  At the Ontario Court of Appeal, the  appellant argued that section 229(c) of the Criminal Code–the only surviving provision that does not require a specific intention to seriously harm or kill–is unconstitutional because it labels an unintentional killing as murder.  The appelant’s argument rested on the premise that the label of “murderer” should be applied based only on a mens rea of intention, not mere foresight in order to conform with the principles of fundamental justice.

The Court of Appeal rejected the appellant’s constitutional arguments and upheld the trial court’s conviction.  They agreed with the Crown that Martineau and concurrent decisions (R v Arkell, R v Luxton) went far enough in protecting the morally innocent from being labeled murderers by ensuring subjective foresight of death as a constitutional requirement of a murder conviction.  In fact, in Martineau, the court specifically addressed section 229(c) by striking down the objective “ought to know” portion of the mens rea requirement, while leaving the subjective mens rea requirement intact. The Court of Appeal concludes that “when the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill.”

This week, the SCC denied leave to appeal in the Shand case.  While it would be valuable to criminal lawyers across the country to get a definitive ruling from Canada’s highest court on the future of section 229(c), this signals that the Court is not interested in re-engaging in constitutional scrutiny of the mens rea requirement for murder for the time being.  Perhaps the Court will see the need to offer judgment when the provision is challenged in another  jurisdiction.  Until then, as per R v Arkell, [1990] 2 SCR 695, subjective foresight of death remains “the highest level of moral culpability” in Canadian criminal law.

Torture Cases Denied Leave to Appeal

A leave for appeal was also denied in the case of Abdullah Almalki et al v Attorney General of Canada. In what are commonly referred to as the “torture cases” by the media, Almalki and his co-appellants Abou-Elmaati and Nuayyed Nureddin filed civil claims against the Canadian government alleging complicity in their detainment and torture in Syria and Egypt between 2001 and 2004.

These claims were put on hold while a Commission was convened to inquire into the actions of government officials in relation to the appellants’ detainment. Following the publication of the Commission’s report, the appellants put forward a motion in the Ontario Superior Court of Justice to allow for the discovery of documents that were noted in the reports.

In response, the Attorney General of Canada applied for an order in the Federal Court (FC) to have the documents withheld pursuant to section 38.04 of the Canadian Evidence Act (CEA), which allows sensitive information to be withheld for reasons of national security. This request was denied in Canada v Almalki, 2010 FC 1106, where the FC concluded that the AG failed to demonstrate a sufficient injury would result in releasing the information.

However, in Canada v Almalki, 2011 FCA 199, the Federal Court of Appeal quashed the denial, arguing that the FC judge erred in applying the three-part test set out in Ribic v Canada, 2003 FCA 246, as the appropriate standard for determining the disclosure of documents under section 38 of the CEA.  The Ribic test requires the courts to complete a balancing act which considers (1) the relevance of the information to the underlying procedure, (2) the impact of disclosure on “national security, international relations or national defence” and (3) “whether the public interest in disclosure is outweighed by the public interest in non-disclosure.”

While the Ribic decision provided that applications for disclosure “are reviewable on a standard of correctness,” the FCA also concluded that cases such as this, involving “a mixed question of fact and law,” should be “subject to the more deferential standard of ‘palpable and overriding error’” set out in Housen v Nikolaisen, 2002 SCC 33.

The FCA also concluded that when applying the Ribic test, the FC judge failed to give proper consideration to the evidence for potential injury and instead gave “undue weight to the public interest in disclosure of the information.” In response to this error, the FCA allowed the appeal and ordered the documents be withheld “to prevent and minimize injury to international relations, national security and national defence.”

The power to order disclosure under section 38 of the CEA requires the courts to engage in a delicate balancing act, which pits the public interests of disclosure against the potential for injury caused to national security. However, the FCA’s decision, and the subsequent denial for an appeal, signals that Canadian courts should be cautious about weighing evidence for a sympathetic disclosure of information more heavily than the public interest of national security.

Just before recessing for the holidays, the Ontario Court of Appeal gave supporters of a “tough-on-crime” policy an early Christmas present.  In a string of six decisions released on December 17, 2010, Ontario’s highest court made it unequivocally clear that terrorism will be dealt with in the most severe fashion available by increasing the sentences of known terrorists.  The court also upheld and increased prison terms given to 3 members of the Toronto 18.

The leading judgment of R. v. Khawaja, 2010 ONCA 862, coming in at almost 100 pages (complete with a table of contents!) forms the foundation for the 6-case series of groundbreaking judgments on terrorism in Ontario. The main issues on this specific appeal were as follows:

1. The constitutionality of the motive clause;
2. Various other grounds for conviction; and
3. The sentencing appeal

Due to the lengthy and complex nature of the legal issues contained in the judgment, this post will form the first of a two-part series on this decision. This first post in the series will discuss the most groundbreaking and newsworthy aspect of the appeal – the sentencing decision.  The next post, to be released on January 24, 2011 will review the court’s consideration of the constitutionality issues as well as the court’s decision on the smaller conviction appeals.

Background

Mohammad Momim Khawaja, a software programmer in Ottawa, was charged on seven counts of acting for the benefit of and in conjunction with a group of persons in England (the “Khyam group”). The Khyam group was alleged to constitute a “terrorist group” within the meaning of the Criminal Code and were allegedly engaged in “terrorist activity” as defined in the Criminal Code.  The seven charges laid encompassed various subsections within s. 83 of the Criminal Code, which contains the terrorism provisions introduced into the statute after the attacks of 9/11.

An extraordinary amount of evidence against Khawaja was introduced at trial, establishing proof of his severe anti-Western sentiment.  In many instances, written communications by Khawaja showed him to be vehemently committed to the advance of violent “Jihad” actions and showed his intent to physically destroy those who (in his mind) wished to destroy Islam and Muslims.  I will not go into further details here, but I urge readers to read the judgment beginning at paragraph 22 for an in-depth and graphic account of Khawaja’s behaviour and beliefs before his arrest.

Sentencing At Trial

After being found guilty (in part or in full) on 6 out of 7 counts, Khawaja was sentenced to 10.5 years in prison by the trial judge, in addition to the time Khawaja had already served in custody.  This sentencing decision is quite significant as it was the first sentencing under Canada’s Part II.1 Terrorism provisions.  As a result, the trial judge likely had every reason to assume his decision would immediately be appealed to the Ontario Court of Appeal.

On appeal, Khawaja argued that his sentence was unfair and should be reduced to the time he had served, which would rendered him a free man!   In a way, the Court agreed.  According to the Court of Appeal, 10.5 years wasn’t fair – in that it was not anywhere near long enough, as they increased his sentence to life imprisonment.

In handing out the tougher sentences, the Court divided their reasons into two separate categories, which I will deal with separately.

Three Errors Were Made in the Sentencing Reasons

(1) The trial judge erred in assessing the appellant’s level of determination

In refusing to award a life sentence for Khawaja’s involvement in a UK fertilizer terrorist bomb plot, the trial judge stated:

I am not persuaded that Momin Khawaja should be characterized as a similar offender in similar circumstances as those [Khyam’s] men. He was a willing helper and supporter, but Khyam [and his associates] were away out in front of Momin Khawaja in terms of their determination to bring death, destruction and terror to innocent people. In my view, Momin Khawaja’s offences, the circumstances in which they were committed and his personal circumstances do not warrant his being sentenced to life imprisonment.

The Court found this to be an error.  The evidence before them (and the trial judge) clearly showed that Khawaja was willing to do anything in order to promote violent Jihadism.  The fact that he had not yet reached the same stage in his activities as his British counterparts could not, according to the appellate court, be seen as a lower level of determination.

(2) The trial judge erred in failing to treat the absence of any evidence of the appellant’s rehabilitative prospects as a critical factor in sentencing

Next, the issue of willingness to reform and be rehabilitated is a sentencing concern.  Neither Khawaja nor his parents were willing to be interviewed in the pre-sentence report.  Because of this, the judge was left with no indication Khawaja intended to alter his future behaviour in any way.  The sentencing judge took this to be a neutral factor in the sentencing process, however, the bench disagreed.

Instead, according to the written reasons, “Far from being a neutral factor, the absence of any evidence of the appellant’s remorse or of his prospects for reformation should have been treated as a significant indicator of his present and future dangerousness.”  Rightly so, the Court indicated that a terrorist who, in his earlier writing had agreed that the killing of innocents was necessary and who had shown no willingness to change must be viewed as a serious security threat and that this factor should absolutely be considered in the sentencing process.

It is unfortunate that Mr. Khawaja and his parents declined to participate in a pre-sentence report in this case. Rehabilitation becomes a more treacherous question for any court when dealing with charges as serious as this with no real basis on which to base sentencing leniency. Although courts likely take no pleasure in assuming the worst in a case like this, my opinion is that the harsher judgment is a more objective reading of the evidence than the trial judge’s decision. Mr. Khawaja and his family had every right to decline this test, but this choice played a strong part in sealing his fate.

(3) The trial judge erred in interpreting s. 83.26 of the Criminal Code

Section 83.26 of the Criminal Code reads (in part):

83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to

(a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events;

While the trial judge followed the consecutive requirement of the section, he also cited the “totality” principle established in R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 42, which “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.”

Disagreeing again, the Court of Appeal found that the C.A.M decision also stated that there was no outer limit for sentencing judges and that the totality principle was custom, not law.  The reasoning goes further to indicate that sentencing must always be an individual decision and that, particularly in the case of terrorism, sentencing should be harsher than normal due to the “indiscriminate killing of innocent human beings.” (Paragraph 223).

The Trial Judge Erred in his Overall Approach to Sentencing

(1) The Sentence does not Reflect the Unique Nature of Terrorism-Related Offences

The Court also found the trial judge failed to consider more overarching policy considerations, the first being the unique nature of terrorism.  According to the Court, terrorism  “is far more insidious in that it attacks our very way of life and seeks to destroy the fundamental values to which we ascribe – values that form the essence of our constitutional democracy.”  The decision had an extensive review of literature describing the unique nature of terrorism, but this comment gives the gist of the appellate court’s complaint; the trial judge did not put nearly enough emphasis on the specific treatment terrorist sentencing requires.  To do this, the Court feels that terrorism-related offences require a departure from the traditional approach to sentencing.

(2)  The Sentence Fails to Adequately Reflect the Continuing Danger that this Offender Presents to Society

As discussed above, although it was submitted at trial for Khawaja that his intended victims were those fighting for the West in Afghanistan, the factual record showed that this was not true.  Additionally, the Court felt that to suggest a lower sentence was justified if soldiers were the only target is highly insulting to the value Canada puts on those serving overseas.

(3) The Sentence Does not Adequately Deter Would-be Terrorists

Finally, the Court found that the trial judge did not give enough weight to the deterrent effect of a harsh sentence.  This was yet another reason for the imposition of the far harsher sentence.

It is likely this case will end up at SCC as a result of its novelty and overreaching policy concerns.  However, in the meantime, it is a breath of fresh air for those (like me) who believe in the power of both deterrence and retribution.  As stated in the decision, “terrorism is a crime like no other.  Once detected, it must be dealt with in the severest of terms.”

On January 24, 2010 the second post in this series surrounding this vital series of cases will be published.  It will assess the Court of Appeal’s analysis of the constitutionality of the new terrorism provisions in the Criminal Code.

Background and Facts

During the earlier years of his detention at Guantanamo, Khadr was interviewed by agents from the Canadian Security Intelligence Services (CSIS) and the Foreign Intelligence Division of Foreign Affairs and International Trade (DFAIT). A report taken from one particular interview noted that a DFAIT official interviewed Khadr even though, as the agent was aware, Khadr had been subjected to sleep deprivation prior to the interview. Sleep deprivation is a recognized form of torture and illegal under established law.

The information obtained from those interviews was shared with the US. According to the SCC in Canada (Prime Minister) v. Khadr, 2010 SCC 3, this conduct established:

Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

As a result of his treatment, and Canada’s complicity, Khadr claimed a violation of his s. 7 Charter rights. Section 7 states:

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.

The Federal Court agreed, and in Khadr v. Canada (Prime Minister), 2009 FC 405, it ordered that the Canadian government remedy the Charter violation by requesting that the US “return Mr. Khadr to Canada as soon as practicable.” Later, in Khadr v. Canada (Prime Minister), 2009 FCA 246, the Federal Court of Appeal upheld the lower court’s decision and dismissed the Crown’s argument that ordering the repatriation of Khadr was a “serious intrusion into the Crown’s responsibility for the conduct of Canada’s foreign affairs…”

Following the Court of Appeal ruling, the SCC accepted that Khadr’s s. 7 rights had been violated but deferred to the government on an appropriate remedy. According to the SCC:

through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.

Yet, the SCC determined, the repatriation order was not “appropriate and just in the circumstances.” The government was ordered to craft an appropriate remedy “in conformity with the Charter.” In response, Canada sent a request (a diplomatic note) to the US asking that it not use any of the information provided by Canada in the prosecution of Khadr. Also, through statements to the press, the government announced that it would continue to resist Khadr’s repatriation.

Back to the Federal Court

In the present case, before Justice Zinn of the Federal Court of Canada in Khadr v. Canada, 2010 FC 715, Khadr argued that the aforementioned statements to the press were representative of a decision subject to judicial review. As well, the sending of a diplomatic note requesting that the US not use the information gathered from the interviews was a decision in response to the SCC ruling that the government craft an appropriate remedy. Both, Khadr argued, should have been made in accordance with the principles of “procedural fairness and natural justice.” Simply put, Khadr’s lawyers should have been given the opportunity to participate in the decision making process. For instance, they should have been provided prior notice and been given the opportunity to put forth written submissions outlining their objections and wishes.

Accordingly, the Federal Court was tasked with answering the following:

1. Was the press release announcing that the government would continue to resist repatriating Khadr a decision subject to judicial review?
2. Was the decision to ask the US not to use the information gathered by Canadian officials (the diplomatic note) subject to judicial review?
3. Did the government have an obligation to provide procedural fairness and natural justice to Khadr when responding to the SCC’s order to craft a remedy?
4. Did Khadr receive procedural fairness and natural justice?
5. If he did not receive procedural fairness and natural justice, what order should the Federal Court impose?

The Federal Court considered whether the public statements were evidence of a decision to continue resisting repatriation. Those statements were made shortly after the SCC decision and in response to press questions regarding whether the government was shifting its position in light of the ruling. The government argued that the statements to the press were not reflective of decisions it had made following the SCC finding. The Federal Court disagreed, ruling that the statements demonstrated a decision by the government to continue to not repatriate Khadr.

The government also claimed that it was within its executive power to decide unilaterally to not repatriate Khadr and that Charter considerations were not warranted. This was a curious argument considering that the SCC had ruled that a Charter violation occurred and that the government had to craft a remedy “in conformity with the Charter.” To argue that the executive did not have to take into account Charter considerations, once a remedial response was ordered, was premised on the exercise of the royal prerogative.

Clearly, this was an executive decision and within the scope of foreign affairs. However, it was ordered to remedy a breach of an individual’s Charter rights. Those special circumstances logically warrant an intrusion into executive power. Not surprisingly, the Federal Court rejected the government’s claim that its decision-making regarding a remedy was beyond the scope of the Charter and therefore not subject to judicial review. To rule otherwise would have set a dangerous precedent regarding individual rights, executive power, and the Charter.

Ultimately, Justice Zinn ruled that “Mr. Khadr was entitled to receive procedural fairness and natural justice from the executive as it reached its decision as to the Charter remedy it would provide.” Accordingly:

the executive had a duty to inform Mr. Khadr of that decision, the remedy it was considering, and the action it would be taking. It also had a duty to give Mr. Khadr an opportunity to make written submissions as to remedial action(s) that would be appropriate before it unilaterally imposed its purported remedy.

The Justice recognized that the diplomatic note attempted to “ameliorate” the breach. But, the note would only be sufficient if there was no possible “cure.” In other words, the government could only rely on an ameliorative remedy if it exhausted all possible curative remedies. In this case, a potential “cure” is to request that the US return Khadr to Canada. Hence, if the government requested the US to return Khadr, and the US did not comply, only then is it likely that a ameliorative remedy would alleviate the Charter breach.

In the end, the Federal Court gave the government “an opportunity to explore effective remedies” and to put forth at least one “potential curative” remedy within 7 days of the judgement. Khadr then has to respond within 7 days from receiving the government’s response as to suggested remedies. Notably, Justice Zinn stated: “I retain jurisdiction to impose a remedy if, after the process described herein, Canada has not implemented an effective remedy within a reasonably practicable period of time…”

Conclusion

Despite the unique circumstances surrounding Khadr, the rule of law should be considered paramount. Mr. Khadr has been tortured (contrary to trite law), was a child soldier, is a Canadian citizen, and has been denied due process.

Chief Justice McLachlin once stated: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.” In the present case, an ameliorative remedy was essentially ruled inconsequential under the circumstances. Ultimately, a breach of a Charter right must be remedied, or attempted to be remedied, in a form that recognizes the importance of that right.

It is highly appropriate that Lord Hope quotes the following statement of Lord Bingham in the opening to the decision:

[W]e are entitled to be proud that even in that extreme national emergency there was one voice—eloquent and courageous—which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom (at para.6, citing The Case of Liversidge v. Anderson : The Rule of Law Amid the Clash of Arms (2009) 43 The Int’l Lawyer 33 at 38).

Lord Hope goes on to recognize the unquestionable and fundamental duty of the judiciary: “Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty” (at para.6).

Ironically, the SCC’s decision in Khadr (2010 SCC 3) was released the same week as this decision. It may be unfair to compare and contrast the two decisions in a technical-legal sense: the UKSC decision is essentially about the legal overreaching of the executive without Parliamentary oversight. Nonetheless, the politically symbolic significance cannot be overstated. Where the SCC backed down, the UKSC stepped up. Finding a clear human rights violation by the Canadian Government, the SCC decided to remain silent on any remedial order. The UKSC, on the other hand, quashed an executive order and went on to not even allow the executive the benefit of time through a suspended declaration. In terms of similarities, like Khadr, the UK case also involved foreign affairs (arguably moreso because it involved the UK Government’s obligations, not discretionary policies, as a Member-State of the United Nations).

Background

The UN Framework to Fight Transnational Terrorism Finance

In the late-1990s, the United Nations took a series of steps in response to the rising threat of terrorism (and to actual terrorism, such as the 1998 coordinated US Embassy bombings at Dar-es-Salaam, Tanzania and Nairobi, Kenya; the 2000 bombing of the U.S.S. Cole; and the foiled Y2K bomb plots). Chief among these was a concerted effort to thwart the transnational flow of the financing that backed terrorism. In 1999, the UN General Assembly adopted the International Convention for the Suppression of the Financing of Terrorism requiring each State Party to create criminal offences prohibiting terrorism financing (GA Res.54/109 (1999), art.4).

During the same period, the UN Security Council adopted a series of resolutions obliging all UN Member-States to adopt measures to “[f]reeze without delay the funds and other financial assets or economic resources of” people and groups associated with Al-Qaida, the Taliban, and Usama Bin Laden, as well as other suspected terrorist individuals and organizations listed under the “Consolidated List” (starting with SC Res.1267(1999) and continuing with resolutions 1333(2000), 1390(2002), 1455(2003), 1526(2004), 1617(2005), 1735(2006), 1822(2008) and 1904(2009)).

Member-State Responses

In response to the Convention and the Security Council resolutions (and perhaps more importantly, in the wake of the 9/11 attacks), all UN Member-States adopted varying measures and submitted reports to the Security Council’s “Al-Qaida and Taliban Sanctions Committee.” Canada, for example, introduced amendments to the Canada Criminal Code and the Proceeds of Crime (Money Laundering) Act through the Anti-Terrorism Act (2001, c. 41) to introduce criminal sanctions for various terrorism finance offences. Canada also created the United Nations Al-Qaida and Taliban Regulations (SOR/99-444) and the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism for a legal mechanism to freeze accounts and assets of suspected terrorists or terrorism financiers.

UK Terrorism Acts and Orders

The United Kingdom adopted the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008, among others, to fulfil its obligations under the International Convention for the Suppression of the Financing of Terrorism. To facilitate financing freezes, the UK established the Terrorism (United Nations Measures) Order 2001 (SI 2001/3365 as am. by SI 2006/2657 and SI 2009/1747) (the Terrorism Order) and the Al-Qa’ida and Taliban (United Nations Measures) Order 2002 (SI 2002/111 as am. by SI 2006/2952) (the AQT Order).

The two Orders in Council gave Her Majesty’s Treasury (“HMT”) the ability to “designate” a person under the Order and to restrict all others from “dealing with” the designated person (catching “every conceivable kind of transaction in respect of funds and economic resources” (at para.26)). The Terrorism Order and the AQT Order created a rigorous and relentless regime of financial freezes that affected all aspects of a designated person’s life, restricting even the financial dealings of his or her family members (e.g. a freeze on social security benefits to the spouse of a designated person).

The Facts

In unrelated communications during 2005-2007, HMT informed the appellants Hani El Sayed Sabaei Youssef; Mohammed al-Ghabra; and Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (formerly known as Mohammed Tunveer Ahmed) that they had been declared “designated persons” under the Terrorism Order.

Ahmed, Khan, and Marteen had never been charged or detained for any terrorism-related offences. HMT informed them that it had “reasonable suspicion” that they were, or “may be,” facilitating acts of terrorism based on evidence obtained from an Al-Qa’ida operative. Both Youssef and al-Ghabra were deemed designated persons by the HMT because they were listed on the Consolidated List of the UNSC Al-Qaida and Taliban Sanctions Committee. Al-Ghabra had links with previously convicted UK terrorists and had been under MI5 survellance for some time. Youssef was an Egyptian lawyer with sympathetic views towards Islamists. He had been arrested on terrorism charges in 1998 but the charges had been dropped and he had been released shortly thereafter. (See [2010] UKSC 2 at paras.32-36; “The five alleged terrorists,” Telegraph.co.uk (27 Jan 2010)).

Judicial History

Ahmed, Khan, Marteen, and al-Ghabra commenced judicial review proceedings in the UK Administrative Court to have the directions against them set aside. The judge at first instance quashed both Orders in Council, holding them to be ultra vires ([2008] EWHC 869 (Admin)). The Court of Appeal allowed the HMT’s appeal in part: instead of holding the entire Orders ultra vires, the Court of Appeal quashed the directions issued against the four individuals ([2008] 3 All ER 361). In Youssef’s case, the court at first instance also found the Orders to be ultra vires but declined to quash the Orders ([2009] EWHC 1677(Admin)). Youssef appealed directly to the House of Lords and the two cases were heard together at the UK Supreme Court.

UKSC Reasoning

The seven UK Supreme Court Lords delivered five separate judgments in the case with Lord Hope delivering the lead judgment. In terms of the result, the seven judges were unanimous that the Terrorism Order was ultra vires in its entirety and held by a majority of six-to-one that article 3(1)(b) of the AQT Order was ultra vires.

From the very beginning of his decision, Lord Hope took a severe stance towards the laws in question, variously describing the measures as “drastic,” “oppressive,” and “draconian.” He noted the grave violations of human rights that these measures entail, e.g., severe limits on access to basic necessities and effectively restricting the freedom of movement of designated persons and making them “prisoners of the state.”

The primary legislation from which the HMT derives its authority is s.1(1) of the United Nations Act 1946, which reads:

If … [the UN] Security Council … [calls upon the] United Kingdom to apply any measures … , His Majesty may by Order in Council make such provision as appears to Him necessary or expedient … , including … provision for the apprehension, trial and punishment of persons offending against the Order.

Lord Hope noted that the section leaves the question of whether a provision is “necessary or expedient” to the executive (at para.43) but retorted that “[i]f the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive” (at para.45). Where Parliament confers a general power or authority, such authority cannot be used contrary to the basic principles of law or in a manner that adversely affects the legal rights of citizens unless this is expressly stated in the conferring statute.

Tracing the legislative history of the 1946 Act, he concluded that Parliament did not intend to give “unlimited” discretion to the executive through s.1(1), especially where it was being used for coercive measures against citizens. Necessity and expediency require that any Order made under s.1(1) can only be legitimate where it does not interfere with fundamental human rights. Further, the Order has to remain in strict proximity to the UN Security Council resolution which requires the measure and cannot have greater impact “than is necessary and unavoidable to give effect” to the resolution.

The Terrorism Order relied on a “reasonable suspicion” test to determine whether an individual could be designated under it. Lord Hope found this mechanism to go beyond the purview of UNSC res.1373(2001). The UNSCR 1373(2001) refers to individuals “who commit, or attempt to commit, terrorist acts” and does not go far enough in allowing restrictions on individuals based on reasonable suspicion. Thus the Court found that the Terrorism Order was ultra vires the executive and that such a measure could not be taken without proper Parliamentary scrutiny.

The AQT Order, on the other hand, does not rely on a reasonable suspicion test to designate individuals under it. This was the crux of the dissent of Lord Brown, who found that the Order “faithfully implements” the UNSCRs and ought to be upheld in its entirety. The issue in the AQT Order was its reliance, through art.3(1)(b), on the UN Consolidated List procedure, which does not provide for an appeal or judicial review procedure. Having no means to challenge the decision to be listed as terrorists and no access to a hearing before an impartial and independent judge meant that art.3(1)(b) must be quashed.

Administrative Law, not Human Rights

Besides quashing the particular Orders, the Court also expanded its reasoning to clarify that the decision would apply to other similar Orders had they been before the Court as well. The fundamental point of the UKSC decision is the principle of legality that “fundamental rights may not be overridden by [a statute conferring administrative or executive powers through] general words” (at para.76).

It is important to stress that the UKSC decision is couched in administrative law. It is clear from the decision that, despite the grave violations of human rights, it notes that the UKSC would uphold the same law if it is implemented through primary legislation. (Of course, the Terrorism Acts provide for greater opportunities for human rights violations.) Although Lord Brown dissented on one point, his reliance on Lord Hoffman’s statement (what Lord Brown dubbed “the Simms principle”) fully articulates the UKSC’s position:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… . But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual (at para. 193, citing R. v. Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131).

Abousfian Abdelrazik may thus be poised to join the likes of Henry Morgentaler, Karlheinz Schreiber, and Adil Charkaoui as the next high-profile litigant in the centre of an epic legal drama slowly winding its way through the Canadian court system. Whether any chapter in the unfolding saga will find its way before our nation’s top court is as yet unclear, but the case is well worth watching in the meantime. In this post, I would like to draw attention to one particular aspect of the case that, I believe, may form the basis of more litigation in future.

By now, most readers with reasonable access to Canadian media outlets will be familiar with the core facts giving rise to this dispute. After five years of sporadic detention and alleged torture for suspected involvement in terrorism at the hands of the Sudanese government, Mr. Abdelrazik, a Canadian citizen, sought and received protection from the Canadian Embassy in Khartoum in April 2008. However, the government refused to issue him a passport enabling him to return to Canada, and so there he languished until Zinn J. allowed his application in the Federal Court.

A factor of this remarkable case that receives comparably little public attention is the ostensible reason the federal government gave in court for refusing to issue Mr. Abdelrazik a travel document. In July 2006, Mr. Abdelrazik had been listed by the UN Committee established pursuant to Security Council Resolution 1267 (the “1267 List”) as an associate of Al-Qaida. As such, he became the subject of a global assets freeze, arms embargo, and travel ban. Unsurprisingly, Zinn J. found that the conclusion of a committee with no formal status under Canadian law could not pose a legal barrier to the exercise of a Canadian citizen’s s. 6 Charter rights.

It is this 1267 List which is worth highlighting as a potential target for further litigation in the Abdelrazik affair. The administration of this list by the 1267 Committee is, to put it mildly, procedurally deficient. An individual may be added to this list at the discretion of the 1267 Committee at the request of a Security Council member, and there are no guidelines, criteria, or standard of proof the Committee must adhere to in doing so. Neither are there any guidelines or criteria to which the Committee must adhere in considering whether to remove someone from the list. Meanwhile, individuals under consideration for inclusion on the list are not invited to make representations to the Committee in their own defence, and neither do they have a right to petition directly the Committee for removal from the list if they are included.

Not surprisingly, Zinn J. found all this “frightening” and “untenable under the principles of international human rights.” Even more frightening, perhaps, is that inclusion on this list also has tangible legal ramifications under domestic law. Under s. 2 of the federal United Nations Act, R.S.C. 1985, c. U-2, the Governor in Council is empowered to issue any order or regulation designed to implement any measure that the Security Council calls upon Canada to apply. In order to implement the measures required by UNSC Resolution 1267, the Governor in Council did, in fact, issue the United Nations Al-Qaida and Taliban Regulations, SOR/99-444, in 1999, which took effect ten years ago Saturday.

The Regulations impose some rather draconian measures on an individual identified on the 1267 List as associated with Al-Qaida. For example, no one may knowingly provide or collect funds with the intention that those funds are to be used by a person identified as associated with Al-Qaida. Neither may anyone make any property or financial or other service available for the benefit of a person identified as associated with Al-Qaida.

These absolute prohibitions are breathtakingly broad. For example, no one may offer Mr. Abdelrazik employment, as doing so would be to provide funds knowing they would be used by him. Mr. Abdelrazik could perhaps decide to carry on his own business, but then no one may purchase whatever goods or services he offers, as this would also breach the prohibition on providing funds to someone associated with Al-Qaida. Were Mr. Abdelrazik to somehow manage to raise some funds for himself, he would still have problems finding housing: for a landlord to rent him an apartment would be making property available for his benefit and, accordingly, also constitute an offence. In fact, under this provision, Mr. Abdelrazik cannot even technically go into a grocery store and buy a loaf of bread. Neither may any community organization sympathetic to his plight provide any resources or services to him for his benefit. Essentially, Mr. Abdelrazik is completely deprived of any capacity to operate as a functional member of society – all without any right to challenge his inclusion on the list, or make representations in his own defence, or even any articulated guidelines or standard of proof for inclusion of an individual on the list. Meanwhile, as Zinn J. noted in his judgment, both Sudanese and Canadian government authorities have cleared him of involvement in any criminal activity.

As if that were not alarming enough, s. 3 of the United Nations Act makes anyone who contravenes an order or regulation made under the Act guilty of an indictable offence punishable by up to ten years in prison. Under this provision, which effectively gives the Governor in Council the extraordinary power to legislate criminal law through an order or regulation, it is thus an indictable criminal offence to provide any material assistance or transact any business with Mr. Abdelrazik.

By this point, it will likely have crossed readers’ minds that this entire regime, which deprives a Canadian citizen of his ability to participate functionally in Canadian society and imperils his very livelihood without the least pretense of due process, is of dubious constitutionality under s. 7 of the Charter. Not surprisingly, no one has of yet been charged with a crime for conducting business with or otherwise providing material assistance to Mr. Abdelrazik. Given that such a prosecution would quite likely collapse under the weight of its own unconstitutionality, perhaps the hope is that leaving this provision unused – and therefore unchallenged – allows the mere spectre of a criminal prosecution to exert a ‘chilling effect’ on those who would otherwise provide some form of assistance to Mr. Abdelrazik. Or, to give the government some credit, perhaps there is simply a realization that this regime is sorely out of line with core Canadian values and one that most Canadians would find distasteful.

Whatever the case, it restores one’s faith in the good sense of Canadian society at large that a number of concerned citizens have in an act of civil defiance and defence of Canadian values stood up to publicly flaunt this law. Nevertheless, it is sobering to discover that there are measures of this nature lurking in the dark recesses of Canadian law. We have the Abdelrazik affair to thank for bringing these shocking measures to light. Although no constitutional challenge has yet been brought to these measures, hopefully we will see just such a claim filed before the Abdelrazik affair finishes winding its way entirely through the Canadian court system.