Supreme Court agrees to hear challenge to anti-terrorism law

Leave to Appeal Granted

The Supreme Court of Canada has granted leave to Mohammed Khawaja to appeal the decision of Ontario Court of Appeal that upheld his conviction for terrorist activity financing and other terrorism-related charges under the 2001 Anti-Terrorism Act.  The Ontario Court of Appeal called Khawaja’s initial 101/2 year sentence “manifestly unfit” and substituted it for a sentence of life imprisonment plus 24 years to be served concurrently. Khawaja is the first person convicted in Ontario of terrorist activity financing under the Anti-Terrorism Act.

Ontario Court of Appeal

The Court found that Khawaja:

  • Was an active member of a terrorist group whose goal was to eradicate western culture and civilization and establish Islamic dominance.
  • Was prepared to go anywhere and do anything for the violent jihadist cause.
  • At the time of arrest, was in possession of a prototype remote detonator device and had promised to build 30 more such devices for a terrorist group.  The device was intended to be used to bomb key locations for the jihad.
  • Willingly participated knowing that his activity was likely to result in the killing of innocent people on a massive scale.

In several e-mails Khawaja expressed the need to devise a way to drain the economies of “Kuffars” (a derogatory term for non-Muslims) of all their resources, crippling their industries and bankrupting their systems by violent means including through the random murder of civilians.

Shutting the Door Swiftly on Terrorism in Canada

In the decision, the Court of Appeal stated:

“Terrorism is a crime unto itself. It has no equal. It does not stop at, nor is it limited to, the senseless destruction of people and property.  It 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…once detected, it must be dealt with in the severest of terms…

When terrorists, acting on Canadian soil, are apprehended and brought to justice, the responsibility lies with the courts to send a clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it here will pay a very heavy price…

Terrorists, in particular, may view Canada as an attractive place from which to pursue their heinous activities. And it is up to the courts to shut the door on that way of thinking, swiftly and surely.”

The Anti-Terrorism Act amended several federal statutes, including the Criminal Code of Canada.

Motive Requirement in Definition of Terrorist Financing

One of the key issues on appeal will be the definitions of “terrorist activity” in §83.011)(b)(i)(B) of the Criminal Code of Canada that requires proof of the motive of the perpetrator (i.e. proof that the act or omission was committed in whole or in part for a political, religious or ideological purpose, objective or cause). The motive requirement in the definition of terrorist activity is inconsistent with the definition in Article 2(1)(b) of the International Convention for the Suppression of the Financing of Terrorism, to which Canada became a signatory in 1980 and ratified without reservation in 1985. The inconsistency makes Canada non-compliant with respect to that aspect of its adoption of the Convention.

Appeal to be Heard Concurrently with Extradition Cases

The Supreme Court of Canada will hear the Khawaja appeal with two other cases that also deal with terrorist financing, Suresh Sriskandarajah v. United States of America and Piratheepan Nadarajah v. United States of America. The other two cases are extradition cases, however, where the burden of proof in respect of the terrorist activity offences is significantly different, and the Sriskandarajah case also involves allegations of money laundering.

In the Sriskandarajah case, the Ontario Court of Appeal upheld an order extraditing Sriskandarajah to the United States to face charges that he conspired to provide material support and resources to the Liberation Tigers of Tamil Eelan, a designated terrorist organization in several countries, including Canada, and used U.S. banks to launder proceeds of crime for LTTE terrorist activities.

According to a criminal complaint filed in the U.S. District Court for the Eastern District of New York, Sriskandarajah wrote several explicit e-mails instructing student couriers on how to smuggle equipment illegally into Sri Lanka for the LTTE, and how to bribe and lie to customs officials and the Sri Lankan Army to get past military check-points. In one e-mail quoted in the complaint, he told students to make up “BS” to get into LTTE-controlled territory and once there, to inform LTTE officials that they were sent by “Waterloo Suresh.”

References:

  • R. v. Khawaja, 2010 ONCA 862 (here)
  • R. v. Sriskandarajah, 2010 ONCA 857 (here)
  • Criminal Code of Canada, R.S.C., 1985, c.C-46 (here)