We Got 99 Problems With Terrorists but the Charter Ain’t One: R v Khawaja
Editor’s Note: On January 10th, 2011 TheCourt.ca featured the first piece of this two-part series on the recent terrorism appeals at the Ontario Court of Appeal. This is the second part of the series and is concerned with the constitutionality issues raised in the case.
Before delving into the constitutional concerns in the case, background to the case will be helpful (see R v Khawaja, 2010 ONCA 862).
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”) who were 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, RSC 1985, c C-46. 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. As outlined in the first of this series, the Ontario Court of Appeal (“ONCA”) increased Khawaja’s initial sentence of 10.5 years in prison to a life sentence.
Post 9/11 Terrorism Laws
This constitutional analysis centres on the introduction of Canada’s Part II.1 Terrorism provisions. Canada’s Anti-terrorism Act, SC 2001, c 41, and the corresponding sections of the Criminal Code became law on December 18, 2001 as a direct response to the threats identified in the 9/11 attacks. Part II.1 of the Criminal Code contains offence-creating provisions for terrorist activity. Counsel for Khawaja attacked the constitutionality of both the definition of “terrorist activity” and s. 83.01(1)(b)(i)(A) of the Criminal Code, more colloquially known as the “motive clause” (which directly relates to the definition of “terrorist activity.”).
The definition of terrorist activity found in the Code contains two meanings. Subsection (a) of s. 83.01(1) refers to enumerated acts or omissions not at issue in this appeal. Subsection (b) of s. 83.01(1) defines “terrorist activity” as:
* (Please note I have simplified the language for ease of understanding).
(b) an act or omission
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and (Motive)
(B) … with the intention of intimidating the public…with regard to its security, … and (Ulterior Intention)
(ii) that intentionally (Intention)
(A) causes death or harm,
(B) endangers life
(C) causes a public safety risk
(D) … (or other consequences.)
Now, “Terrorist activity” is not a crime under Part II.1. The phrase “terrorist activity” does not prohibit any political, religious, ideological thought, belief or opinion. The phrase refers to motives that underlie certain conduct. The definition includes the requirement that the defined conduct be performed for a political, religious or ideological reason. So, believing and thinking is fine – it’s only when that belief or thought is attached to conduct that it becomes a problem. Moreover, although the conduct as defined would be a crime regardless of motive, it only becomes terrorism when accompanied by the ideological motives described above.
In layman’s terms then, the section defines “terrorist activity” as:
- An act
- That is done for an ideological cause and is done with the intention of intimidating the public
- Which intentionally causes any one of a number of listed consequences.
The Constitutional Challenge
It should come as no surprise that counsel for Khawaja argued the “motive” aspect of the section violated Khawaja’s Charter right to freedom of expression under s. 2(b). The crux of Khawaja’s argument was that this motive clause violated s. 2 through its “chilling effect” on those who would otherwise be inclined to express political, religious, or ideological beliefs that are, or might be seen by the public and the authorities as, similar to the views held by individuals associated with “terrorist activity.”
In a nutshell, Khawaja argued that the legislation prevented others from expression, not the actions of terrorists before him.
Mo’ Words, Mo’ Problems?
This rather lengthy section of the Code is complex and wordy. However, what’s important to remember is that there is a conduct component and a mental component. The constitutional attack was directed at the mental component of the definition, which contains three aspects. “Terrorist activity” requires (1) an intention to bring about the consequence prohibited in the definition, (2) an ulterior intention with respect to a further consequence, and (3) proof of a specified purpose or motive.
It is recognized in criminal law that motive generally refers to some further intent which forms no part of a legal rule. This principle formed the basis of Khawaja’s objection – that motive has no part in a mens rea analysis.
Although this aspect of the appeal has some intuitive appeal, the ONCA had little trouble rejecting this somewhat-simplistic argument. First, the Court provided examples of many other offences under the Code which require conduct be done for a specified purpose at para. 92 (such as sabotage, inciting to mutiny, and sexual interference). Further, mens rea can require the Crown prove “purpose.” As the Court of Appeal clarified, “purpose” can refer to a state of mind that may include the reason that precipitated conduct – which we also refer to as motive. Following this principle (established in R v Hibbert,  2 SCR 973), the Court of Appeal easily dismissed this rather weak argument.
Talk This Way
One of the most often-used arguments in a 2(b) constitutionality attack is the notion that freedom of expression is critical to society and individuals and must be protected, irrespective of its content. This is precisely what Khawaja attempted to argue.
It is now well established that the content of expression or expressive activity cannot deprive that activity of its expressive quality (Irwin Toy Ltd v Quebec (Attorney General),  1 SCR 927). There is a wide array of literature available on the fundamental importance of expression to the individual and to society as a whole. However, when expression is violent, it will not be sheltered under s. 2(b). However, the question that was posed here concerned the threat of violent activity.
The ONCA analyzed past caselaw, finding that there was a grey area in the jurisprudence concerning threats of violent activity. Thus, tasked with the responsibility to clarify this grey area (at least at the Court of Appeal level) the Court determined that none of the activity impugned in the statute was protected under s. 2(b) for two main reasons. First, the conduct typically does involve the use of violence to convey meaning. Second, the conveyance of meaning is done in a way contrary to the principles underlying the very right of freedom of expression.
Ice, Ice, Baby
Counsel for Khawaja argued the legislation has a “chilling effect” on expression in society, particularly for those of Middle-Eastern descent who must battle unfair stereotypes associated with Muslims and terrorism. The ONCA rejected this position as well, finding that any chilling effect is caused by incorrect stereotypes and past acts, not this piece of legislation. The Court found that the trial judge’s view of the indirect effect of the impugned definition was founded entirely on speculation, both as to the existence of the “chilling effect” and the cause or source of that “chilling effect.”
The Court was also prepared to dispense with this argument purely on the basis that zero evidence was adduced to support its existence.
Finally, the Court conceded that persons who are inclined to express views that support some of the beliefs or goals of terrorist groups might well be dissuaded from openly expressing those views because of the terrorist activities of those who hold similar views. However, the Court also stated,
A person who would never engage in “terrorist activity” may refrain from expressing a particular point of view for fear of being identified with true terrorists who happen to share the same belief. On this analysis, it is the actions of the terrorists and not the legislation targeting their activities that creates the “chill”.
Off To Ottawa
While the ONCA has provided the legal community with (what I find to be) a well-written, in-depth and forward-thinking set of reasons, it’s quite likely Khawaja will seek leave to appeal at the SCC. Indeed, by clearly identifying an obvious hole in the law surrounding s. 2(b) (the question of whether threats of violence are protected), the ONCA has honed in on an important current issue that I hope the SCC will consider. Modern times call for strict protections against terrorist activity, but it is also critical that the law reflect a clear and nuanced position with respect to these offences. This case would present the Supreme Court with a perfect opportunity to set the standard.