R v Khawaja: The Sentencing of a Terrorist in Canada

Last Thursday, Mohammad Momin Khawaja became the first person in Canada to be sentenced under the Anti-terrorism Act, SC 2001, c 41, which was pushed through Parliament in response to the 9/11 attacks in the United States.

Background

At trial, there was little dispute about the facts of the case. Justice Douglas Rutherford of the Ontario Superior Court in Ottawa provided a summary of the important facts in his Reasons for Judgment, released 29 October 2008, at paras 4-72. Briefly, in the period between 2002 and 2004, Khawaja was involved with a group of individuals based mainly in the United Kingdom, who had ties with al’ Qaeda. He attended a training camp in Pakistan, where he underwent physical and weapons training.

Khawaja transferred funds to his associates in the UK, for which he enlisted the help of a young Muslim woman to avoid suspicion; she was not made aware of the purpose for which the funds were being sent and Khawaja used an alias in his communications with her. He also persuaded his parents to evict tenants from their residence in Pakistan so that he could make it available for members of the group. Finally, at the time of his arrest, Khawaja was in the process of developing a remote detonating device named the “hifidigimonster.”

Khawaja was arrested on 29 March 2004; the following day, six members of the group were arrested in the UK. In April 2007, five were found guilty by a jury of conspiring to cause terrorist explosions in the greater London area or elsewhere in the UK using 600 kg of ammonium nitrate fertilizer and other related counts; all five were sentenced to life imprisonment. In Canada, Khawaja elected to be tried by a judge without a jury. After twenty-seven days of trial, Justice Rutherford found Khawaja guilty on seven counts.

Mr. Khawaja’s case is significant for various reasons, one of them being Justice Rutherford’s determination that the definition of “terrorist activity” under s. 83.01(1)(b)(i)(a) of the Criminal Code, RSC 1985, c C-46, infringed the freedoms guaranteed under s. 2(a), (b) and (d) of the Charter and thus should be severed from the section (see [2006] OJ No. 4245, leave to appeal dismissed [2006] SCCA No 505). However, this post will focus on Justice Rutherford’s Reasons for Sentence, released 12 March 2009.

Reasons for Sentence

Justice Rutherford sentenced Khawaja to ten-and-a-half years in prison in total for all counts (one was stayed pursuant to the Kienapple principle). Prior to sentencing, he ordered the preparation of a pre-sentence report, and defence counsel filed with the court brief statements signed by Khawaja’s parents; there were also three days of submissions from both prosecution and defence counsel. However, Justice Rutherford noted that the pre-sentence report was of limited value, as neither Khawaja nor his parents had been willing to be interviewed in the course of the preparation of the report. With regard to the statements from Khawaja’s parents, Justice Rutherford wrote:

[28] The signed statements provided by Momin’s mother and father through counsel make no reference to Momin’s activities giving rise to his prosecution, or to any reflection by them or by their son on that activity. Indeed, reading those statements, one might think that this was a very normal family situation. There was no mention of the array of military style rifles, the crates of ammunition, the other weapons, the projectile-pocked human target on the basement wall, the mini-library of violence and warfare-oriented books or the workshop of electronic constructs found throughout the family home when police searched it. It is impossible to think that the others members of the family were oblivious to Momin’s preoccupation with and proclivity to participate in violent jihad. What did his parents think was going on when Momin wanted the tenants out of the Rawalpindi residence so he could make it available to others? Their statements shed virtually no light on the areas of concern this Court has for the future of their son.

As the first case to reach sentencing under the terrorism provisions of the Criminal Code, Khawaja will likely serve as a blueprint for future cases. Perhaps this made the task of determining the appropriate sentence for Khawaja more difficult for Justice Rutherford. He notes at para 36:

[36] [Section 718.2(b)] provides that

718.2 (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

As I said earlier when outlining the positions of the parties and the cases referred to me, finding a similar offender and similar offenses in similar circumstances is an elusive pursuit. As Mr. McKercher noted in his sentencing submissions,

This case stands out almost alone at this point in history, and Your Honour will have noted the difficulty that both counsel had in finding applicable cases that would be of really clear help in guiding Your Honour in sentencing.

This is the first case to reach sentencing under Canada’s terrorism provisions and, we are in an era in which terrorism offenses tend to raise different concerns and considerations than did more isolated acts of terror in decades gone by, making the application of this provision very difficult.

Defence counsel, Mr. Lawrence Greenspon, argued for an aggregate sentence of 7.5 years. Based on the fact that Khawaja had been in custody since his arrest almost five years ago, Mr. Greenspon submitted that Khawaja should be released, given the usual 2-for-1 credit for pre-trial custody. He also argued that credit should be given for trial time saved as a result of the significant factual admissions made by the defence. Counsel for the Crown, on the other hand, argued for a life sentence, referring to the convictions in the UK, where the other members of the group had all received life sentences.

Despite the Crown’s requiest, Justice Rutherford refused to impose a life sentence:

[37] For the prosecution, Mr. McKercher urged the Court to follow the Court in the United Kingdom that confirmed the life sentences imposed on Omar Khyam and the other members of the terrorist group in London. I am not persuaded that Momin Khawaja should be characterized as a similar offender in similar circumstances as those men. He was a willing helper and supporter, but Khyam, Amin, Akbar, Garcia and Mahmood 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 offenses, the circumstances in which they were committed and his personal circumstances do not warrant his being sentenced to life imprisonment.

Interestingly, Justice Rutherford also rejected the defence submission to grant 2-for-1 credit for time served. Indeed, Justice Rutherford refused to state clearly how much credit is being given to Khawaja, but only that it was taken into consideration in determining the appropriate sentence:

[45] I do not think giving credit for the 5 years pre-sentence custody on a 2:1 basis is appropriate in the circumstances of this case. As noted earlier, the dominant objectives of sentence in this case must be to denounce, to repudiate and to punish Khawaja’s misconduct, to reinforce our Canadian values of individual worth and peaceful, tolerant co-existence, to deter others from such misconduct, and to protect the public from any further such criminal conduct. Giving 10 years credit for 5 years of pre-sentence custody would, in my view, skew the sentencing that would tend to accomplish those objectives either by reducing the terms below what would be appropriate, or by requiring an artificially and unjustifiably higher notional sentence or starting point in order to arrive at a suitable result. Put another way, it seems incompatible to include in a predominantly denunciatory sentence, a credit of 10 years in prison for 5 years pre-sentence custody. Such a large block of credit cannot but invite public suspicion, even if unfairly, that the sentencing is being manipulated by delay in going to trial, with the result that public confidence in the proper administration of criminal justice is likely to be eroded.

[46] By comparison, in cases of murder, the most serious of crimes, where life sentences with limited parole eligibility are mandatory, the effective credit towards the time at which parole could be granted is effectively only 1:1 in terms of pre-trial and pre-sentence custody. This is the effect of s. 746 of the Criminal Code.

[47] I don’t think that specifying a precise or particular arithmetic formula for giving presentence custody credit in this case is necessary or appropriate. It simply invites the further use and adoption of such formulae, tending to make sentencing appear a mechanical cookie-cutting process. It is not. It is a highly individualized process in which individual judgment and general principles work together over the circumstances of individual cases. Put simply, in determining the sentences in this case, I take into account that Momin Khawaja has already spent 5 years being confined in a detention centre that is not suited for long-term imprisonment, and that the punitive, denunciatory and deterrent impact of that alone is significant.

The Sentence

Both counsel for the defence and prosecution have indicated the possibility of appealing the sentence. This is not surprising considering how “unusually far apart” they were on what sentencing terms would have been appropriate. From the position of the Crown, a 10-year sentence is quite short, considering the seriousness of the offences, which is reflected by the maximum sentences available under the terrorism provisions, ranging from 10 years to life imprisonment.

Section 83.26 of the Criminal Code also requires that sentences under these provisions must be served consecutive to any other punishment arising out of the same facts. In addition, Justice Rutherford noted that there were aggravating circumstances pursuant to s. 718.2(a) of the Criminal Code, specifically (i) that the offences were motivated by bias, prejudice or hate based on religion, and (v) that the offences were terrorism offences.

On the other hand, Justice Rutherford also reminded himself of the totality principle and the importance of ensuring that the sentence imposed in its totality was not unduly long or harsh, and considering the relatively unimportant position Khawaja occupied in the organization, a life sentence may seem to be excessive.

After reading the reasons for judgment and sentence, I am of the opinion that the sentence imposed was indeed an appropriate one, as Justice Rutherford seemed to have taken all relevant facts and law into consideration. However, regardless of any personal opinion, it will be interesting to see how this case proceeds if and when it reaches the appellate courts.