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LexView 60.0 - Terrorism and the Law: Balancing Security with the Chill on Fundamental Freedoms

From the Archived "LexView" Series

January 10, 2007

Is the reference to religion, politics or ideology necessary for a definition of terrorism or to make criminal "terrorist" activities? What harm would come of (and what benefits obtained from) requiring a proof of religious, political or ideological motivation in criminalizing terrorist activities? Has the court's concern about the chill on religion, belief and association rights been consistently applied in Canada?

R. v. Khawaja
[2006] O.J. No. 4245
Ontario Superior Court of Justice

Date of Decision: October 24, 2006
Date of Issue: January 10, 2007

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Criminal Code; section 83.01(1); terrorism; terrorist group; terrorist activity; motive; intent; "political, religious or ideological purpose"; Charter of Rights and Freedoms; vagueness; overbroad; section 2(a); freedom of religion; section 2(b); freedom of expression; section 2(d); freedom of association; section 1; demonstrable justification

Summary of Facts:

On December 16, 2005, Mohammed Momin Khawaja was charged, by indictment, with 7 offences under this Terrorism Section, Part II.1 of the Criminal Code. The charges included allegations of:

  1. working on a development of a device to activate a detonator with the intent to cause an explosion for the benefit of or in association with a terrorist group;
  2. making or possessing an explosive substance for the benefit of or in association with a terrorist group;
  3. contributing to the activities of a terrorist group;
  4. instructing another to open a bank account and conduct financial transactions on behalf of a terrorist group; and
  5. making available property and financial services knowing or intending that they would be used for terrorist activity.

Mr. Khawaja's trial was not set to begin until January 2, 2007. In September, 2006, Mr. Khawaja made an application to have the "terrorism" sections of the Criminal Code declared of no force or effect on a number of bases, including that the provisions were over-broad and vague, diluted the necessary fault requirements of the criminal law and infringed his freedoms of religion, expression and association under sections 2(a), 2(b) and 2(c) of the Charter of Rights and Freedoms ("Charter"), respectively.

The application was made without reference to the facts underlying the criminal charges and, in the result, the details of the actual terrorist activities alleged against Mr. Khawaja are not recorded in the Court's judgment.

Fundamental to the constitutional challenge brought by Mr. Khawaja is the definition of "terrorist activity" in paragraph 83.01(1)(b) of the Criminal Code:

(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, and

(B) in whole or in part with the intention of intimidating the public . . . with regard to its security, including its economic security, of compelling a person, a government or domestic or an international organization to do or to refrain from doing any act. . ., and

(ii) that intentionally

(A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person's life,

(C) causes a serious risk to the health or safety of the public. . .,

(D) causes substantial property damage. . ., or

(E) causes serious interference with or a serious disruption of an essential service, facility or system. . .

(emphasis added)

Key to Mr. Khawaja's challenge was the requirement that a terrorist activity must be motivated by political, religious or ideological purposes and that, as such, this requirement is an essential element of any case under the terrorism provisions of the Criminal Code.

Significant Issues:

Is the reference to religion, politics or ideology necessary for a definition of terrorism or to make criminal "terrorist" activities? What harm would come of (and what benefits obtained from) requiring a proof of religious, political or ideological motivation in criminalizing terrorist activities? Has the court's concern about the chill on religion, belief and association rights been consistently applied in Canada?

Decision and The Court's Reasons:

The Court held that the provisions of the Criminal Code under attack were neither void for vagueness nor overbroad in their reach. The Court held that the provisions can be read, construed and applied in conformity with the principles of fundamental justice.

In considering section 2 of the Charter, the Court focused on what it referred to as the novel element in Canadian criminal law inherent in the definition of "terrorist activity", namely that proof of motive is essential to conviction under the terrorism provisions. More specifically, the Court held that the definition of "terrorist activity" infringes the fundamental freedoms guaranteed by section 2 of the Charter, including those of religion, thought, belief, opinion, expression and association. The offending element is that requiring proof of a "terrorist" activity was dependent on showing that it was undertaken, in whole or in part, for a political, religious or ideological objective or cause.

The Court then considered whether this definition of "terrorist activity" could be demonstrably justified in a free and democratic society under section 1 of the Charter. It held that there was no compelling benefit or justification for the motive provision that could be weighted against its freedom-infringing impact. In the result, it was found not to be a proportional limitation on section 2 freedoms.

The remedy granted by the Court was to strike out clause 83.01(1)(b)(i)(A) of the Criminal Code. This is the provision, quoted above, that requires proof of a political, religious or ideological motivation before an act can be considered to be a terrorist activity. It is notable that the rest of that section remains intact. As such, acts or omissions that would otherwise meet the definition of "terrorist activity" are still prohibited in the Criminal Code, without reference to motivation.

The Court found that the terrorism provisions of the Criminal Code were not vague because they describe conduct in a fashion that provides appropriate notice of the type of conduct prohibited and sets up an intelligible standard for law enforcement officials and citizens alike. The motivation provisions do not change this conclusion, as there is specific action that is prohibited.

The Court rejected the argument that the provisions are overbroad for similar reasons.

Key to this decision was the Court's discussion of the fundamental freedoms in section 2 of the Charter; namely, freedom of conscience and religion (s.2(a)); freedom of thought, belief, opinion and expression (s.2(b)) and freedom of association (s.2(d)).

The Court spent little time separately considering the extent to which the provisions engage freedom of association, simply referencing a previous Supreme Court of Canada decision that "freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion". The Court then went on to explain how the definition of "terrorist activity" infringed these other two freedoms and, by extension, freedom of association.

Key to the Court's reasoning was its finding that proof of a "political, religious or ideological purpose, objective or cause" is an essential element in any enforcement action. With respect to freedom of expression, the Court concluded that some terrorist activities, as defined in the Criminal Code, would not, in and of themselves, be violent in nature and would therefore attract the protection of section 2(b). Similarly, the reference to a religious purpose or motivation directly engages section 2(a) by criminalizing conduct done for religious purposes.

The Court concluded that the inclusion of a motive requirement would focus investigative and prosecutorial scrutiny on religious and ideological beliefs, opinions and expressions of persons and groups. This would lead inevitably to a chilling effect, as well as a "shadow of suspicion and anger" that would fall over those who appear to belong to religious or political groups that share beliefs attributed or attributable to terrorists. In essence, and to put specific context around the concern, the Court was troubled that all Muslims would be tarnished and limited in their religious expression by these provisions given that the most recent examples of terrorist activity in the world are associated with those professing Islamic convictions behind their actions. The Court also quoted academic writers expressing concern that these provisions could also be turned again Quebec separatists, aboriginal rights proponents, pro-life advocates, trade unionists and others. The Court held that this alone would constitute a prima facie infringement on the fundamental freedoms guaranteed under sections 2(a), (b) and (d) of the Charter.

This conclusion necessitated a review of whether the infringements could be justified under section 1 of the Charter. The Court noted immediately that justification is not tied to how popular a provision is or whether it accords with current public opinion polls. The Court surveyed definitions of terrorism currently used around the world and found a consistency in the reference to religious, ideological or political motivation.

The Court focused on the fact that terrorist activity is not the expression of religious, political or ideological objectives or causes unless it also causes death, serious harm, danger to life, risk to health or safety, property damage or systems interference. All of these can and are criminalized quite apart from the question of motive. As such, the Court found little merit in criminalizing the specific motive in the face of the chilling effect on religious and political expression that would accompany the provisions.

The Justice Department, in attempting to defend the provision, argued that this result would render indistinguishable terrorist crimes from the underlying criminal activity that is already contrary to criminal law and the subject of general law enforcement. The Court dealt with the objection that this would insulate terrorist charges from their heinous motivations and suggested that it was open to Parliament to add motivation to a list of aggravating factors in determining sentence, similar to how hate motivation is currently dealt with at law. The Court asked rhetorically:

are the acts [such as the Oklahoma, London or Madrid bombings] any less terrorizing, intimidating or insidious for our failure to fathom and spotlight the inspiration of the perpetrators?

LexView Commentary:

This case involves the debate that has raged for centuries and which has been more acute since September 11, 2001. Just how much freedom should we sacrifice in order secure greater safety from those who intend us harm? In its most recent incarnation, the debate centres on the current war between extremists within Islam and western civilization many have said they wish to destroy. In this case, the debate is more precise in that it is focused on whether religious, political or ideological motivation can or should be a requirement of proving a criminal offence involving terrorism.

Is there benefit in criminalizing terrorist motivation in order to achieve a chilling effect on behaviour or cultures within the country that foster terrorism or allow it to germinate? And if there is such a benefit, is it worth the cost that would be paid by limiting the protection of religious and political expression that may accompany it? These are two of the questions that the Court attempted to answer, but ended up skirting by determining that in the end, it "really doesn't matter." In addition to these, we discuss, below, whether the court's concern about the "chill" on certain fundamental freedoms is being consistently applied today in Canada.

(a) Does The Chill on Religion, Expression, Belief and Association Outweigh Concerns about Public Safety in Relation to Terrorism?

It is manifestly true that without reference to "political, religious or ideological purpose, objective or cause", the actual conduct prohibited by the terrorist provisions of the Criminal Code will remain prohibited and criminal. As such, without clause 83.01(1)(b)(i)(A) of the Criminal Code, the underlying conduct that causes death, serious harm, danger to life, risk to health or safety, property damage or systems interference will remain punishable and subject to appropriate law enforcement.

It is also true that proof of motive has not traditionally been a required element in Canadian criminal law. The reason why someone commits a criminal act may assist in proving that he or she did actually commit the act. However, that motive neither establishes a crime nor excuses it. The criminal law has always looked to intent, rather than motive. Intent exists when a person wishes a certain result to occur from his or her actions. Intent has always been involved in the criminal law as the mens rea requirement. For example, a person cannot be convicted of murder without establishing that by his or her conduct, he or she intended the death of another person. Why he or she wanted to cause the death (motive) may assist in proving intent, but it is not an element that must be proven in order for the prosecution to achieve a conviction.

With respect to hate crimes, the conduct of inciting hatred and advocating genocide are criminal in nature, but there is no reference to any motivation based on hate. It is reasonable to presume that a person that incites hatred or advocates genocide is motivated by hate, but there is no requirement that this be shown prior to a conviction nor are the reasons for incitement to hatred and genocide relevant. This does not mean that hatred or other motivations are completely foreign to our criminal law. Evidence that any offence (not just hate based offences) were motivated by hate is an aggravating factor that, in theory, should increase the severity of a sentence imposed.

The concern that adequate law enforcement requires successful monitoring before crimes such as terrorism occur must be balanced alongside the concern that legal belief, associational or religious activity not be "chilled." Most important to the resolution of that balancing in this decision was that the Court noted that the methods invoked by law enforcement to detect and prevent terrorist crimes is not hindered by the removal of the motive element of the definition of "terrorist activity".

It is not longer an element of the crime and as such requires no proof to obtain a conviction. However, this does not prohibit law enforcement agencies from focusing on those persons intending to cause harm to innocent citizens because of a religious, political or ideological motivation as part of regular policing.

The Court found that terrorist activity is not the expression of a political, religious or ideological objective unless it also causes death or other serious harm through otherwise criminal activity. This is correct, based on the structure of the Criminal Code provisions. The Court used this as a springboard to conclude that the primary result of the motive requirement is a chilling effect on religion, expression and free association. That is one way to view things, but issue can be viewed from the other side as well. Perhaps allowing a chilling effect on certain religious and ideological beliefs in the context of (and that lead to) already illegal conduct is acceptable because (and not in spite of the fact that) the conduct is already illegal.

In other words, the only chilling effect may be on the very kind of religious and ideological expression that results in criminal conduct. If this results in a safer society could we not see such a focus as justifiable? Apparently not, in this sort of case, according to the Court.

(b) Have the Court's Applied Concerns about the Chill on Religion, Belief and Association in a Consistent Manner?

From what follows above, one might well ask why, in other sorts of cases, the Courts seem to have accepted a chilling effect on religion and expression in order to prevent various sorts of social harm much less immediate and devastating than the results of terrorism? For example, in Kempling v. B.C. College of Teachers (see LexView 58.0), the B.C. Court of Appeal was quite willing to override free expression on the issue of homosexuality in order to protect against a perceived harm to the public school system—on a much more nebulous basis that the situation involving terrorism.

To the extent that this case and cases such as Kempling appear inconsistent with respect to how the court has weighed the chilling effect on religion and expression can, unfortunately, be attributed to political concerns rather than consistent legal analysis. The Court in Khawaja quoted academics who express anxiety over tainting all Muslim Arabs with anti-terrorist laws and sentiments. As rightly noted by the Court, the interpretation and application of the Charter must be done without reference to how popular a provision is or whether it accords with current public opinion polls. This can prove to be very difficult and one would be excused for finding just such a caving in to perceived public opinion in cases such as Kempling.

Those who would seek the benefit of Section 2 rights under the Charter, such as religious people and their communities, can draw some comfort from the Supreme Court of Canada which has repeatedly accepted that the validity of religious beliefs is immune from judgment and scrutiny by the Courts:

This approach to freedom of religion effectively avoids the invidious interference of the State and its courts with religious belief. The alternative would undoubtedly result in unwarranted intrusions into the religious affairs of the synagogues, churches, mosques, temples and religious facilities of the nation with value-judgment indictments of those beliefs that may be unconventional or not mainstream. As articulated by Professor Tribe, supra, at p. 1244, "an intrusive government inquiry into the nature of a claimant's beliefs would in itself threaten the values of religious liberty".

In short, debate and discussion about the relative merits or shortcomings of various religions, beliefs and so on are essential elements of living in a free society. On the other hand, however, it would be quite a different thing to permit the government or the state to penalize certain religious or political beliefs (without other inherently criminal action) because of an official opprobrium imposed on that belief. In order to protect robustly freedom, the preference should always be to relieve religion and expression from unnecessary burdens, hindrances or reprisals. In that regard, the Court was correct to place concerns about the chill on religious beliefs ahead of supposed benefits to be obtained from adding religious motivation to the criminal law regarding terrorist acts. Unfortunately, other Courts have not so robustly protected religion and expression against the prevailing winds of political correctness.

This is not to say that a terrorist mindset or motive is entirely inappropriate in the criminal law. A terrorist's motivation would continue to be relevant to assist in establishing intent, which would remain a required element of the offense. Additionally, as suggested by the Court, a terrorist's motivation could, and arguably should, be a legitimate aggravating factor in sentencing.

As a final note, one benefit of the Court's decision is that the Crown is now relieved of actually having to prove a religious, political or ideological motive in order to convict a terrorist thereby making such convictions easier. In a world increasingly fearful of Islamist terrorism that will provide additional comfort to some people.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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