Convicted terrorist Momin Khawaja disagrees fundamentally with Canada’s anti-terrorism laws, believing they are an unfair infringement on his rights under the Charter of Rights and Freedoms to express himself freely.
The Supreme Court, in a unanimous, commonsensical decision, struck down this argument Dec. 17 and increased his sentence of 10½ years to a life sentence.
Khawaja was the first Canadian charged under the new anti-terrorism laws enacted after Sept. 11, 2001 for assisting a group of London Islamists who planned to build and detonate bombs made of fertilizer in shopping malls, nightclubs and other targets.
Khawaja sent a number of emails to those involved with the plot, provided funding to them, designed a detonator for the explosives which he planned to smuggle into the United Kingdom, and offered to provide training to the group. The emails he sent documented his ideological commitment to jihad. He also travelled to Pakistan to attend a terrorist arms training camp.
The Supreme Court ruling combined this case along with two others because the challenges were so similar. The law was challenged under two parts of the Charter: section 7 on life, liberty and security of the person (for being overbroad), and section 2(b) on freedom of thought and expression (for creating a chilling effect on free expression).
Section 83.18 of the Criminal Code makes it an offence to participate in, facilitate, instruct, or harbour a terrorist group, either directly or indirectly. The court held that the anti-terrorism law has a legitimate purpose: to prosecute and prevent terrorism. It is noted that this section would not be used to convict “innocent or socially useful conduct” where there is a lack of intent to facilitate a terrorist group.
It is crucial to note that Khawaja was not challenging the evidence against him, but the law itself. This is nowhere more apparent than his misconception of freedom of thought and expression, which he felt was violated by the anti-terrorism law.
Specifically, he brought a challenge to the motive clause, section 83.01(1)(b)(i)(A) of the Criminal Code, which defines terrorism as being “committed in whole or in part for a political, religious, or ideological purpose, objective or cause.”
The challenge was two-pronged. Firstly, Khawaja argued that the law itself violates free expression. This first argument is easily nullified by noting that this section of the law is confined to “the realm of violence and threats of violence,” which is not protected under freedom of speech. The second and more controversial argument is that the effect of the law chills freedom of speech, religion and association, and it legitimizes law enforcement aimed at scrutinizing individuals based on their religious beliefs.
The trial judge accepted this second argument and severed this religious motive requirement from the definition of terrorism. Khawaja was sentenced in March 2009 to 10½ years in prison, with eligibility for parole in five years.
The trial judge noted that Khawaja lacked remorse and was not willing to show that he would comply with Canadian law in the future. The Ontario Court of Appeal, however, disagreed with the sentence: it reinstated the religious motive clause and gave Khawaja a life sentence. The sentence was dramatically increased by the appellate court because of the “continuing danger this committed and apparently remorseless man would pose to society on release.” The Supreme Court upheld the ruling of the court of appeal.
The lower court verdict would have removed the requirement to admit evidence about a suspected terrorist’s religious and political views.
Kent Roach, a prominent legal scholar at the University of Toronto, agrees with the finding of the trial judge. In the Canadian Criminal Law Review, he argues that the removal of the religious motive clause will not guarantee the occurrence of fairness, “but it is a step in the right direction.” Further, he argues that the focus on terrorism prosecutions should be on violence and not on the accused’s religious and political views, in order to protect the accused and others from discrimination on the basis of religion.
It is a fallacy to not consider the underlying thoughts and ideologies of those accused of terrorism.
Religion should be one of the criteria employed since acts of violence against innocent civilians are often justified by an appeal to higher loyalties. The thought processes of the accused are crucial to understanding their motives and the presence of a “guilty mind” for the criminal act.
The Department of Justice notes that the motive requirement is useful “because it aims directly at the ideological dimension of terrorism, which seeks to undermine the normative foundations of liberal democracy. At the same time, nothing in these words targets any particular cultural, religious or ethnic group or any particular ideology.”
Khawaja did not deny his intent at any time. According to evidence at the trial, he described dedicating his life to violent jihad and believes that suicide attacks on civilians are at times justified. This is contrary both to Canadian and international law. At no time did he renounce jihad and there was no evidence that he would change his ways. This is an individual who will certainly pose a danger to Canadian society if released.
The Supreme Court made the most logical decision in upholding the motive clause while denouncing stereotyping by the justice system.
It is crucial to understand the motives behind an offender’s actions, and anti-terrorism legislation should be no different. This principle is used in prosecuting hate crimes and for those who desecrate places of religious worship. Why should a terrorism charge be any different?