Supreme Court upholds law on terrorism
Khawaja must serve penitentiary sentence
OTTAWA — The Supreme Court has delivered a stinging defeat to Ottawa terrorist Momin Khawaja with a landmark ruling upholding the constitutionality of Canada’s antiterrorism law and his life sentence behind bars.
In a unanimous decision Friday authored by Chief Justice Beverley McLachlin, the high court firmly rejected Khawaja’s constitutional challenge of his 2008 conviction for plotting with a group of British Islamist extremists that was planning a London bombing campaign in 2004 and to wage a wider jihad against the West.
The high court decision ends the 33-year-old’s hope for salvation from a bleak supermax prison north of Montreal.
Moreover, it gives Canada’s contentious post-9/11 anti-terror law a final passing grade and an acknowledgment that the most massive, controversial and complex legislation ever enacted in Canada is true to the aspirations of the society it is supposed to protect.
“What the Supreme Court has done is given confidence to the notion that the Anti-terrorism Act was in some of its core provisions carefully and appropriately constructed,” said Wesley Wark, a national security expert and a visiting professor at the Graduate School of Public and International Affairs at the University of Ottawa.
“People were undoubtedly right to suspect that there might be things amiss with the legislation but now it’s been challenged in court and it’s been challenged in appeals to the supreme court and now we can take a retrospective breath and say we’ve got a workable law, which is what we need.”
A key issue in Khawaja’s appeal was whether a crucial section of the anti-terror law violates the constitutional right to freedom of expression. The so-called “motive clause” requires authorities to prove an individual’s alleged terrorist actions were motivated by religious, ideological or political beliefs.
Khawaja’s legal team argued the clause produces a “chilling” effect on the expression of beliefs and opinions and thus violates the Charter guarantee to freedom of expression.
The crucial question before the court was how much Charter protection should be given to expressions of violence and whether such conduct can be criminalized.
The court upheld the motive clause and concluded that threats of violence are not constitutionally protected, which is consistent with its jurisprudence.
“Threats of violence, like violence, undermine the rule of law,” the court wrote. “Threats of violence take away free choice and undermine freedom of action. They undermine the very values and social conditions that are necessary for the continued existence of freedom of expression.”
Speaking later, Khawaja’s dejected lawyer Lawrence Greenspon called it a “terrible day for Momin Khawaja (and) a very unfortunate ruling for minorities in this country.”
The court also rejected Khawaja’s claim that one of the Criminal Code’s definitions of terrorist offences is overly broad and therefore violates the constitutional right to life, liberty and security and criminalizes innocent activities.
The section, 83.18, makes it a crime to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity.
Khawaja, along with appellants in two other terrorism case appeals that the court ruled on Friday, argued 83.18 is overly broad because it captures conduct that does not contribute materially to the cre-
“Threats of violence, like violence, undermine the rule of law.”
SUPREME COURT RULING
ation of a risk of terrorism, such as direct and indirect participation in legitimate, innocent and charitable activities carried out by a terrorist group.
The court disagreed, saying a proper interpretation of the sections “exempt(s) those who may unwittingly assist terrorists or who do so for a valid reason. Social and professional contact with terrorists — for example, such as occurs in normal interactions with friends and family members — will not, absent the specific intent to enhance the abilities of a terrorist group, permit a conviction.”
Greenspon said his concern is not that courts will misinterpret how to apply anti-terror laws, but that individuals expressing unpopular opinions and beliefs, or engaging in contentious but legal activities could find themselves wrongly swept up in criminal investigation and prosecution.
The ruling ends Canada’s first major post-911 terrorism prosecution that began in March 2004 when Khawaja was arrested.
Over eight years, the case wound its way through five levels of the Canadian court system, as defence lawyers and government prosecutors tested the legal limits of the nascent act. The glacial process — pre-trial legal skirmishes alone lasted four years — has led to calls for a streamlined approach to terrorism cases involving sensitive national security information.
Friday’s Supreme Court decision also quickly rejected Khawaja’s appeal argument that he was duped by his British associates into believing he was making bomb-detonating components for the Muslim insurgency in Afghanistan when, unbe-knownst to him, the group’s true target was to terrorize London.