Mohammad Momin Khawaja Appellant v. Her Majesty the Queen, 2012 SCC 69

SUPREME COURT OF CANADA Citation: R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 Date: 20121214 Docket: 34103 Between: Mohammad Momin Khawaja Appellant and Her Majesty the Queen Respondent - and - Attorney General of Ontario, Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval, Canadian Civil Liberties Association and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 132) McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ. concurring) R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 Mohammad Momin Khawaja Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario, Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval, Canadian Civil Liberties Association and British Columbia Civil Liberties Association Interveners Indexed as: R. v. Khawaja

2012 SCC 69 File No.: 34103. 2012: June 11; 2012: December 14. Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Freedom of expression — Accused convicted of terrorism offences under

Part II.1 of Criminal Code — Whether provisions, in purpose or effect, violate right to free expression — Canadian Charter of Rights and Freedoms, s. 2(b) — Criminal Code, R.S.C. 1985, c. C-46, s. 83.01(1) (b)(i)(A).

Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Terrorism offences — Provision criminalizing participation in or contribution to activities of terrorist group — Whether provision broader than necessary to achieve purpose or whether provision’s impact disproportionate — Whether provision contrary to principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 83.18 .

Criminal law — Appeals — Terrorism offences — Trial fairness — Trial judge finding that clause defining terrorist activity as being for political, religious or ideological purpose unconstitutional — Court of Appeal overturning decision on constitutionality but upholding convictions — Whether Court of Appeal erred in applying curative proviso — Whether convictions unreasonable — Criminal Code, R.S.C. 1985, c. C-46, ss. 83.01(1) (b)(i)(A), 686(1)(b)(iii).

National security — Terrorism — Sentencing — Totality principle — Accused guilty of terrorism offences sentenced by trial judge to 10 and a half years of imprisonment, with parole eligibility set at 5 years — Court of Appeal substituting sentence of life imprisonment coupled with 24 years of consecutive sentences, with parole eligibility set at 10 years — Whether Court of Appeal erred in overturning sentence.

After becoming obsessed with Osama Bin Laden and his cause, K communicated with an American who eventually pled guilty to providing material support or resources to Al Qaeda and with the leader of a terrorist cell based in London, England, who was convicted along with several co-conspirators of a plot to bomb targets in the U.K. and elsewhere in Europe. K repeatedly offered them support, provided funds, designed a remote arming device and recruited a woman to facilitate transfers of money.

He travelled to Pakistan and attended a small arms training camp, and proposed that a supporter of the terrorist cell be sent to Israel on a suicide mission. K was charged with seven offences under the Terrorism

section of the Criminal Code (Part II.1). He brought a preliminary motion seeking a declaration that several provisions are unconstitutional. The motion judge held that s. 83.01(1) ( b )(i)(A), which provides that a terrorist activity must be

an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” (the “motive clause”), was a prima facie infringement of s. 2( a ), (

b) and (

d) of the Charter that could not be justified under s. 1 , and accordingly severed the clause from s. 83.01(1). At trial, since two of the offences — wanting to cause an explosion with specified consequences at the behest of a terrorist group and possessing an explosive substance with the intent of enabling a terrorist group to endanger others — required knowledge of the U.K. group’s bomb plot, which the Crown had failed to establish beyond a reasonable doubt, the trial judge found K guilty of lesser included offences (working on the development of a detonator and keeping an explosive substance).

He also convicted K on five counts which engage ss. 83.03 (providing or making available property or services for terrorist purposes), 83.18 (participating in or contributing to the activity of a terrorist group), 83.19 (facilitating a terrorist activity) and 83.21 (instructing people to carry out an activity for a terrorist group).

The judge sentenced K to 10 and a half years in a penitentiary, gave no credit for time served on the basis that that would be incompatible with a denunciatory sentence, and set parole eligibility at 5 years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values. The Court of Appeal held that the motive clause was not unconstitutional and should not have been severed, but dismissed the conviction appeal, applying the curative proviso in s. 686(1)( b )(iii) of the Criminal Code .

It dismissed K’s appeal from the sentences, but allowed the Crown’s cross-appeal and substituted a sentence of life imprisonment on the conviction for building a detonator to cause a deadly explosion. Emphasizing the seriousness of the conduct, it substituted a total of 24 years of consecutive sentences for the remaining counts, to be served concurrently with the life sentence, and set parole eligibility at 10 years instead of 5. Held : The appeal should be dismissed.

Constitutionality of the Provisions K challenges the constitutionality of the legislation on the ground that the motive clause would produce a chilling effect on the expression of beliefs and opinions and thus violates s. 2 of the Charter . In their companion appeals ( Sriskandarajah v. United States of America , 2012 SCC 70 , [2012] 3 S.C.R. 609 ), S and N also claim that the legislation’s purpose violates s. 2 of the Charter . They also challenge the constitutionality of s. 83.18 for overbreadth, under s. 7 of the Charter . For convenience, all these constitutional claims are considered in this appeal.

Section 83.18 does not violate s. 7 of the Charter . A purposive

interpretation of the actus reus and mens rea requirements of s. 83.18 excludes convictions (

i) for innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity, and (ii) for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. The legitimate purpose of the Terrorism

section of the Criminal Code is to provide means by which terrorism may be prosecuted and prevented. This purpose commands a high mens rea threshold. To convict under s. 83.18 , a judge must be satisfied beyond a reasonable doubt that the accused specifically intended to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. There may be direct evidence of this intention. Or the intention may be inferred from evidence of the knowledge of the accused and the nature of his actions. The use of the words “for the purpose of” in s. 83.18 requires a subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a

terrorist activity. The accused must specifically intend his actions to have this general effect. Further, the actus reus of s. 83.18 does notcapture conduct that discloses, at most, a negligible risk of enhancing the abilities of a terrorist group to facilitate or carry out a terroristactivity. The scope of the provision excludes conduct that a reasonable person would not view as capable of materially enhancing theabilities of a terrorist group to facilitate or carry out a terrorist activity.

The determination of whether a reasonable person would viewconduct as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity hinges on thenature of the conduct and the relevant circumstances. When the tailored reach of s. 83.18 is weighed against the objective of the law, itcannot be said that the selected means are broader than necessary or that the impact of the

section is disproportionate. The purpose of the law does not infringe freedom of expression. While the activities targeted by the Terrorism

section of theCriminal Code are in a sense expressive activities, most of the conduct caught by the provisions concerns acts or threats of violence. Threats of violence, like acts of violence, are excluded from the scope of the s. 2(

b) guarantee. Moreover, the particular nature of theconduct enumerated in s. 83.01(1)(b)(ii)(A), (B), (

C) and (

D) justifies treating counselling, conspiracy or being an accessory after the factto that conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents. Assuch, the conduct falls outside the protection of s. 2(

b) of the Charter. However, it is not necessary to decide whether counselling,conspiracy or being an accessory after the fact fall outside the s. 2(

b) guarantee as a general matter. Read as a whole and purposively,s. 83.01(1)(b)(ii)(E), which is directed to acts that intentionally interfere with essential infrastructure without which life may be seriouslydisrupted and public health threatened, is also confined to the realm of acts and threats of violence. However, it cannot be ruled out thats. 83.01(1)(b)(ii)(

E) might in some future case be found to capture protected activity. In such a case, the issue would be whether theincursion on free expression is justified under s. 1 of the Charter. In this case, it is impossible to infer, without evidence, that the motive clause (s. 83.01(1)(b)(i)(A)) will have a chilling effecton the exercise of s. 2 freedoms. The impugned provision is clearly drafted in a manner respectful of diversity, as it allows for thenon-violent expression of political, religious or ideological views (s. 83.01(1.1)).

Application of the Provisions in This Appeal and Sentencing The re-insertion of the motive clause by the Court of Appeal did not make K’s trial and convictions unfair. The trial judgemade a specific finding that the motive component of the definition of terrorist activity had been proved beyond a reasonable doubt,which suffices to fully support the motive requirement of the convictions. Also, the evidence of motive, and K’s knowledge that themotive was shared by him and the terrorist cell, was overwhelming and essentially undisputed.

There is no air of reality to K’s statementthat he could have, or would have, testified to raise a reasonable doubt on motive, had the clause not been struck. In essence, noprejudice flowed from the re-insertion of an essential element of the offence on appeal. The uncontradicted evidence before the trial judge established beyond a reasonable doubt that K’s conduct did not fallwithin the armed conflict exception in s. 83.01(1) in fine, which provides that terrorist activity does not include acts or omissionscommitted during an armed conflict in accordance with international law.

The Crown bears the burden of proving beyond a reasonabledoubt that the acts alleged against an accused fall within the definition of terrorist activity, and any reasonable doubt must be resolved inthe accused’s favour. However, since the armed conflict exception functions as a defence, the accused must raise it and make a primafacie case that it applies. Here K could not do so, as there was no evidential foundation to support its applicability.

The trial judgeexpressly found that K knew that the terrorist group’s activities extended beyond the armed conflict in Afghanistan and that he supportedthe terrorist objectives, and the evidence is overwhelmingly contrary to the proposition that K’s acts were part of an armed conflictgoverned by international law. There is no air of reality to the suggestion that K believed that the group intended to act in compliancewith international law, or that he cared if it did. There is no merit to K’s submissions that the convictions are unreasonable. However, the trial judge made critical errors insentencing.

He effectively devalued the seriousness of the appellant’s conduct in a way that was inconsistent with the evidence, andfailed to give adequate weight to the ongoing danger K posed to society. While the weight to be given to rehabilitation in a given case isbest left to the reasoned discretion of trial judges on a case-by-case basis, here the absence of evidence on rehabilitation prospectsjustified a stiffer sentence than otherwise might have been appropriate.

Finally, the heightened gravity of the terrorism offences at issuein this case was sufficient to justify imposition of consecutive sentences running over 20 years, without violating the totality principle. The general principles of sentencing, including the totality principle, apply to terrorism offences. Cases Cited Considered: R. v. Heywood, (SCC), [1994] 3 S.C.R. 761; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3S.C.R. 571; R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC44, [2011] 3 S.C.R. 134; distinguished: R. v.

Déry, 2006 SCC 53, [2006] 2 S.C.R. 669; referred to: Sriskandarajah v. United States ofAmerica, 2012 SCC 70, [2012] 3 S.C.R. 609; Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729; Application under s.83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; United States of America v. Nadarajah (No. 1), 2010 ONCA 859,109 O.R. (3d) 662; Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031; R. v. Ahmad (2009), (ON SC), 257 C.C.C. (3d) 199; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927;Greater Vancouver Transportation Authority v.

Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009]2 S.C.R. 295; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; RWDSU v. Dolphin DeliveryLtd., (SCC), [1986] 2 S.C.R. 573; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Downey, 2010 ONSC1531 ; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500. Statutes and Regulations Cited Anti-terrorism Act, S.C. 2001, c. 41. Canadian Charter of Rights and Freedoms, ss. 1, 2, 7. Criminal Code, R.S.C. 1985, c. C-46,

Part II.1, ss. 83.01(1) “terrorist activity”, “terrorist group”, (1.1), 83.02, 83.03, 83.04, 83.05, 83.18,83.19, 83.2, 83.21, 83.23, 83.26, 686(1)(b)(iii), 718(c), 718.2, 719.

Authors Cited Canada. House of Commons. House of Commons Debates, vol. 137, No. 95, 1st Sess., 37th Parl., October 16, 2001, p. 6165. Davis, Kevin E. “Cutting off the Flow of Funds to Terrorists: Whose Funds? Which Funds? Who Decides?”, in Ronald J. Daniels,Patrick Macklem and Kent Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill. Toronto: University ofToronto Press, 2001, 299. Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Supp. Toronto: Carswell, 2007 (loose-leaf updated 2011, release 1). Parent, Hugues, et Julie Desrosiers. Traité de droit criminel, t. 3, La peine.

Montréal: Thémis, 2012. Roach, Kent. “Terrorism Offences and the Charter: A Comment on R. v. Khawaja” (2007), 11 Can. Crim. L.R. 271. Roach, Kent. “The New Terrorism Offences and the Criminal Law”, in Ronald J. Daniels, Patrick Macklem and Kent Roach, eds., TheSecurity of Freedom: Essays on Canada’s Anti-Terrorism Bill. Toronto: University of Toronto Press, 2001, 151. United Nations. Security Council. U.N. Doc. S/RES/1373, September 28, 2001.

APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Cronk JJ.A.), 2010 ONCA 862, 103 O.R.(3d) 321, 271 O.A.C. 238, 273 C.C.C. (3d) 415, 82 C.R. (6th) 122, [2010] O.J. No. 5471 (QL), 2010 CarswellOnt 9672, overturning aconstitutional ruling by Rutherford J. (2006), 214 C.C.C. (3d) 399, 42 C.R. (6th) 348, 147 C.R.R. (2d) 281, , [2006]O.J. No. 4245 (QL), 2006 CarswellOnt 6551, affirming convictions entered by Rutherford J. (2008), (ON SC), 238C.C.C. (3d) 114, [2008] O.J.

No. 4244 (QL), 2008 CarswellOnt 6364, and varying sentences imposed by Rutherford J. (2009), (ON SC), 248 C.C.C. (3d) 233, [2009] O.J. No. 4279 (QL), 2009 CarswellOnt 6322. Appeal dismissed. Lawrence Greenspon and Eric Granger, for the appellant. Croft Michaelson and Ian Bell, for the respondent. Michael Bernstein, for the intervener the Attorney General of Ontario. Yan Paquette and Louis-Philippe Lampron, for the intervener Groupe d’étude en droits et libertés de la Faculté de droit del’Université Laval. Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Canadian Civil Liberties Association.

Kent Roach and Michael Fenrick, for the intervener the British Columbia Civil Liberties Association. The judgment of the Court was delivered by The Chief Justice — I. Introduction [1] The appellant, Mohammad Momin Khawaja, was convicted of five offences under

Part II.1 of the Criminal Code,R.S.C. 1985, c. C-46, the Terrorism section. He faces a life sentence and a concurrent sentence of 24 years of imprisonment, with a 10-year period of parole ineligibility.

He appeals on a variety of grounds, which may be summarized as follows: (1) that the provisions inPart II.1 of the Criminal Code under which he was convicted violate the Canadian Charter of Rights and Freedoms and areunconstitutional; (2) that the provisions were misapplied or misinterpreted, resulting in an unfair trial or an unreasonable verdict; and (3)that the Ontario Court of Appeal erred in imposing his sentence. [2] For the reasons that follow, I would reject each of the contentions of the appellant.

The issues in this appealoverlap with some of the issues in the companion appeals of Sriskandarajah and Nadarajah (Sriskandarajah v. United States of America,2012 SCC 70, [2012] 3 S.C.R. 609). For convenience, I will consider all the constitutional issues in these reasons. II. The Evidence [3] The facts underlying the offences were largely undisputed.

Voluminous email correspondence attested in graphicdetail to the appellant’s ideological commitment to violent “jihad” and to his acts in Canada and elsewhere to further jihad-inspiredterrorist activities. [4] While living with his siblings in Canada, the appellant became obsessed with Osama Bin Laden and his cause. Theappellant began communicating with other people committed to violence in the name of Islam, some of whom he referred to as “thebros”.

He entered into covert email correspondence with Junaid Babar, an American of Pakistani descent who eventually pled guilty inNew York City to five counts of providing material support or resources to Al Qaeda. He also communicated extensively with OmarKhyam, the leader of a terrorist cell based in London, England, who was convicted along with several co-conspirators of a plot to bombtargets in the U.K. and elsewhere in Europe. [5] The appellant repeatedly offered Khyam and Babar support. He gave Khyam money for an explosives operation inthe United Kingdom or elsewhere in Europe.

He gave Babar cash, supplies and SIM cards so that Babar could contact Khyam whentransporting detonators to Europe. He provided funds to support Babar, Khyam and “the bros” in their jihadist efforts. He designed aremote arming device for explosives that he referred to as the “hifidigimonster”, and offered to smuggle it into the U.K. and train theU.K. cell on its use. He recruited a woman in Ottawa to facilitate transfers of money. He also offered to procure night goggles for use bythe group.

[6] The appellant travelled to Pakistan alone and with Khyam, and attended Babar’s small arms training camp. Hemade his parents’ home in Pakistan available to the “bros”. He suggested members of the U.K. group travel to Canada for weaponstraining. He also proposed to Khyam via email that a supporter of the Khyam group be sent to Israel on a suicide mission. [7] On March 29, 2004, the RCMP arrested the appellant and searched his house in Orleans, Ottawa.

They seized the“hifidigimonster”, electronic components and devices, parts suitable for constructing more remote arming devices, documentscorroborating the assembly process for the device, instructional literature and tools, military calibre rifles and ammunition, otherweapons, hard drives, $10,300 in one-hundred dollar bills, military books and jihad-related books. No blasting caps, other detonators orexplosives components were discovered. III. Judicial History [8] By direct indictment, the appellant was charged with seven offences under the Terrorism

section of the CriminalCode. The appellant brought a preliminary constitutional motion (allowed in part) and a motion for a directed verdict of acquittal(dismissed). He elected to be tried by judge alone, and was convicted on five counts and found guilty of two included offences. A. The Pre-trial Charter Challenge (2006), (ON SC), 214 C.C.C. (3d) 399 [9] Prior to trial, the appellant sought a declaration that several terrorism provisions of the Criminal Code (ss. 83.01(1),83.03(a), 83.18, 83.18(1), 83.18(3)(a), 83.19, 83.2 and 83.21(1)) are unconstitutional.

The motion judge found that the impugnedprovisions are neither unconstitutionally vague nor overbroad. [10] However, the motion judge held that s. 83.01(1)(b)(i)(A), which provides that a terrorist activity must be

an act oromission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” was a prima facieinfringement of s. 2(a), (

b) and (

d) of the Charter. He found that the effect of this “motive clause” would be “to focus investigative andprosecutorial scrutiny on the political, religious and ideological beliefs, opinions and expressions of persons and groups”, which in turnwould produce a chilling effect on the expression of beliefs and opinions (para. 58). He found that the infringement could not bejustified under s. 1 and accordingly severed the motive clause from s. 83.01(1). B. The Trial (2008), (ON SC), 238 C.C.C. (3d) 114 [11] The trial proceeded on the basis that the motive clause was severed from the legislation.

The trial judge found theappellant guilty of seven offences. [12] The trial judge held that the first two counts (wanting to cause an explosion with specified consequences at thebehest of a terrorist group and possessing an explosive substance with the intent of enabling a terrorist group to endanger others) requiredknowledge of the U.K. group’s bomb plot, which the Crown failed to establish beyond a reasonable doubt. Since defence counsel hadadmitted that there was evidence of lesser included offences, the trial judge found the appellant guilty of working on the development ofa detonator contrary to s. 81(1)(

a) of the Criminal Code and keeping an explosive substance contrary to s. 81(1)(d). He conditionallystayed proceedings on the latter count, under the Kienapple principle (Kienapple v. The Queen, (SCC), [1975] 1 S.C.R.729). He held that the remaining five counts were not restricted by a requirement that the appellant know the U.K. group was planning abomb plot.

His findings with respect to each count can be summarized as follows: Count 3: The appellant participated in a terrorist group by taking weapons training at the camp in northern Pakistan for the purpose ofenhancing the ability of a terrorist group to facilitate or carry out a terrorist activity; Count 4: The appellant deceived a young woman into acting as a conduit to pass funds for the purpose of enhancing the ability of theKhyam group to facilitate or carry out a terrorist activity; Count 5: The appellant made his parents’ residence in Pakistan available for the use of the Khyam group in pursuit of a commonobjective of violent jihad, thereby making property available for the purpose of facilitating a terrorist activity or for the benefit of aterrorist group; Count 6: Everything the appellant did in relation to developing the remote detonator device amounted to participating in or contributingto the activity of a terrorist group for the purpose of enhancing the group’s ability to carry out a terrorist activity; and Count 7: The appellant knowingly facilitated terrorism by, inter alia, transporting money, a medical kit, SIM cards and invisible ink pensto Babar; offering to acquire equipment; suggesting that Khyam and another group member come to Canada for shooting practice;offering a course in electronics; suggesting that a third party be sent on a suicide mission to Israel; discussing putting his computer skillsto work to assist “the bros”. [13] The trial judge found that the U.K. cell qualified as a terrorist group within the meaning of the Terrorism

section ofthe Criminal Code. On the basis of judicial notice of facts available, inter alia, from documents on the United Nations website, he heldthat the insurgents’ conduct in Afghanistan is terrorist activity, because it results in death and destruction and it is intended to intimidate

the Afghan population and diminish support for the legitimate government. Consequently, by preparing for and supporting theinsurgency against the coalition forces in Afghanistan, the U.K. cell was facilitating terrorist activity and qualified as a terrorist group.The trial judge held that the appellant “knew he was dealing with a group whose objects and purposes included activity that meets theCode definition of terrorist activity” (para. 131). [14] The trial judge refused to apply the exception for armed conflict in the definition of “terrorist activity” in s. 83.01(1)in fine.

Pursuant to that subsection, terrorist activity does not include acts or omissions committed during an armed conflict inaccordance with international law. The trial judge found that neither the appellant nor any member of the U.K. cell was engaged inarmed conflict. C. The Sentence (2009), (ON SC), 248 C.C.C. (3d) 233 [15] The trial judge took into account the mitigating personal circumstances raised by the appellant, but noted that therewas no information available respecting his attitude or expected future behaviour, because he had refused to be interviewed for a pre-sentence report.

The trial judge held that while terrorism sentencing must emphasize denunciation, deterrence and protection of thepublic, the potential for rehabilitation could not be overlooked. He refused to order a life sentence similar to those given to the cellmembers in the U.K. because he was not persuaded that the appellant was a similar offender in similar circumstances, as opposed to justa willing helper and supporter. [16] The trial judge sentenced the appellant to 10 and a half years in a penitentiary. He gave no credit for time served onthe basis that that would be incompatible with a denunciatory sentence.

He set parole ineligibility at 5 years to reflect the absence of anyevidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values. D. The Court of Appeal, 2010 ONCA 862, 103 O.R. (3d) 321 [17] The Court of Appeal dismissed the appellant’s conviction appeal. However, the Court of Appeal held that the trialjudge had erred in finding the motive clause unconstitutional. It stated that expressive activity that takes the form of violence is notprotected by s. 2(

b) of the Charter, since violence is destructive of the very values that underlie the right to freedom of expression. Forthe same reason, threats of violence are not protected by s. 2(b). Thus, the legislation limits a form of expression that is destructive of theprinciples underlying freedom of expression and, consequently, cannot constitute an infringement of s. 2(b).

Moreover, the Court ofAppeal held that the trial judge’s conclusion that the impugned provisions had a chilling effect was founded entirely on speculation,rather than on evidence to the effect that members of the community actually felt constrained in the expression of their beliefs oropinions. [18] The Court of Appeal found, as had the trial judge, that the armed conflict exception did not apply to the appellant’sconduct. There was no evidence that the appellant or the insurgents in Afghanistan undertook armed conflict in accordance withinternational law.

The record showed that the appellant himself viewed the violent jihad he was committed to as unlawful. Moreover, theappellant’s actions were directed at supporting terrorist activities inside and outside of the forum of conflict in Afghanistan. [19] The Court of Appeal stated that the trial judge did not err in taking judicial notice of the nature of hostilities inAfghanistan. Further, the verdicts reached by the trial judge were amply supported by the record at trial and were reasonable. [20] Finally, the Court of Appeal dismissed the appellant’s appeal from the sentences, but allowed the Crown’s cross-appeal.

The Court substituted a sentence of life imprisonment on the conviction for building a detonator to cause a deadly explosion.Emphasizing the seriousness of the conduct, it substituted a total of 24 years of consecutive sentences for the remaining counts, to beserved concurrently with the life sentence, and set parole ineligibility at 10 years instead of 5. IV. The Legislation [21] The Anti-terrorism Act, S.C. 2001, c. 41, part of which now forms

Part II.1 of the Criminal Code, was passed in2001, in the aftermath of the Al Qaeda attacks in the United States and Resolution 1373 of the United Nations Security Council, whichcalled on member states to take steps to prevent and suppress terrorist activity (U.N. Doc. S/RES/1373).

The purpose of the legislation isto provide a means by which terrorism may be prosecuted and prevented: Application under s. 83.28 of the Criminal Code (Re), 2004SCC 42, [2004] 2 S.C.R. 248. [22] While the immediate impetus for the legislation may have been concern following the terrorist attacks of September11, 2001, the legislation has a much broader history and context. As the recitals to the U.N. Resolution make clear, these events werepart of an unfolding and escalating international problem. Canada, which had experienced the Air India and Narita bombings, was nostranger to this problem.

The legislation is not emergency legislation, but a permanent part of the criminal law of this country: Application under s. 83.28 of the Criminal Code (Re), at para. 39. [23] The appellant says that the definition

section of the legislation, s. 83.01(1), offends Charter guarantees, notablyfreedom of religion and freedom of expression. I will at this point describe in general terms the

definitions of “terrorist activity” and“terrorist group”, and the offences that the provisions create. The full text of the relevant provisions is reproduced in the Appendix. [24] “Terrorist activity” is defined (

i) as

an act or omission committed inside or outside Canada that, if committed insideCanada, would constitute one of the Criminal Code offences enumerated in s. 83.01(1)(a), or (ii) as

an act or omission, a conspiracy, anattempt or threat to commit any act or omission, counselling

an act or omission and being an accessory after the fact to

an act oromission, that causes one of the consequences described in s. 83.01(1)(b)(ii)(

A) to (E). These consequences are: causing death or seriousbodily harm to a person by the use of violence (clause (A)); endangering a person’s life (clause (B)); causing a serious risk to the healthor safety of the public or any segment thereof (clause (C)); causing substantial property damage, whether to public or private property, ifcausing such damage is likely to result in the conduct or harm referred to in clauses (

A) to (C) (clause (D)); or causing seriousinterference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result ofadvocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (

A) to (C)

(clause (E)). However, conduct otherwise captured by s. 83.01(1) ( b )(ii)(

A) to (

E) does not constitute “terrorist activity” if it falls within the exception for armed conflict conducted in accordance with international law ( s. 83.01(1) in fine ). [ 25 ] Furthermore, the act or omission that causes one of the consequences enumerated in 83.01(1)( b )(ii)(

A) to (

E) only constitutes “terrorist activity” if it is accompanied by the requisite mental state. The act or omission must be done with the intention of causing one of the enumerated consequences. In addition, the act or omission must be done with the ulterior intention of intimidating the public or a segment of the public as regards its security, or to compel a person, a government or an organization — whether inside or outside of Canada — to do or refrain from doing any act ( s. 83.01(1) ( b )(i)(B)).

Finally, the act or omission must be done in whole or in part for a political, religious or ideological purpose, objective or cause ( s. 83.01(1) ( b )(i)(A)). [ 26 ] “Terrorist group” is defined as a person or group that has as one of its purposes or activities the facilitation or carrying out of any “terrorist activity”, or a person or group identified in a regulation adopted under s. 83.05. [ 27 ] Based on these

definitions, the legislation goes on to create a number of offences, including: - Providing or making available property or services for terrorist purposes ( s. 83.03 ) (maximum term of imprisonment of 10 years); - Participating in or contributing to the activity of a terrorist group (s. 83.18) (maximum term of imprisonment of 10 years); - Facilitating a terrorist activity ( s. 83.19 ) (maximum term of imprisonment of 14 years); - Instructing people to carry out an activity for a terrorist group (s. 83.21) (liable to imprisonment for life). [ 28 ] The counts on which the appellant was convicted variously engage all of these offences. [ 29 ] The terrorism offences attract specific sentencing provisions.

Pursuant to s. 83.26, sentences for terrorism offences must be served consecutively. Further, s. 718.2 provides that the commission of a terrorism offence is to be considered an aggravating factor for the purposes of sentencing. Finally, I set out the provisions of the Charter relevant to the appeal. The overbreadth argument advanced in the companion appeals is grounded in s. 7 of the Charter : 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 30 ] The appellant in this appeal bases his argument that the provisions are unconstitutional on s. 2 of the Charter : 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. [ 31 ] Breaches of Charter guarantees can be justified under s. 1 , which provides: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. V. Issues [ 32 ] The issues are as follows: A. Constitutionality of the provisions; 1. Does s. 83.18 of the Criminal Code violate s. 7 of the Charter ? (

a) The test for overbreadth; (

b) The scope of the law; (

c) The objective of the law; (

d) Are the impugned provisions broader than necessary or is their impact disproportionate? 2. Does the law, specifically the motive clause, infringe s. 2 of the Charter ?

(

a) Unconstitutional purpose; (

b) Unconstitutional effect; 3. Conclusion on the constitutionality of the law; B. Application of the provisions; 1. Did the deletion and subsequent re-insertion of the motive clause make the trial and convictions unfair? 2. Does the armed conflict exception apply? 3. Were the verdicts unreasonable? C. Did the Court of Appeal err in overturning the sentence imposed by the trial judge and substituting a term of life imprisonment? [33] The appellant challenges the constitutionality of the legislation only on one ground: that its chilling effect violates s.2 of the Charter.

The appellants in the companion appeals also allege a violation of s. 2 of the Charter, and additionally challenge theconstitutionality of s. 83.18 for overbreadth pursuant to s. 7 of the Charter. VI. Analysis A. Constitutionality of the Provisions 1. Does

Section 83.18 of the Criminal Code Violate

Section 7 of the Charter? [34] The appellant challenged the provisions under which he was charged as unconstitutional for vagueness andoverbreadth on a pre-trial constitutional motion. The trial judge rejected this submission and the appellant does not pursue it before thisCourt. However, s. 83.18 of the Criminal Code is challenged for overbreadth in the companion appeals.

Since all three cases depend onthe ultimate constitutionality of the legislation, I propose to consider all the constitutional arguments, including overbreadth, in thesereasons. [35] It is a principle of fundamental justice that criminal laws not be overbroad. Pursuant to s. 7 of the Charter, laws thatrestrict the liberty of those to whom they apply must do so in accordance with principles of fundamental justice. Criminal laws thatrestrict liberty more than is necessary to accomplish their goal violate principles of fundamental justice. Such laws are overbroad.

Theappellants Nadarajah and Sriskandarajah say that the combined effect of the definition of terrorist activity (s. 83.01(1)) and of theprovision prohibiting participation in terrorist activity (s. 83.18) results in overbreadth, by criminalizing conduct that creates no risk ofharm and is only tenuously connected to Parliament’s objective of preventing terrorist activity. [36] I will first review the legal test for overbreadth. I will then apply this test to the definition of terrorist activity andthe prohibition of participation in terrorist activity. (

a) The Test for Overbreadth [37] In R. v. Heywood, (SCC), [1994] 3 S.C.R. 761, this Court explained that a law is overbroad if thestate, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective. In determiningoverbreadth, a measure of deference must be paid to the means selected by the legislator. [38] The appellants argue that the law is overbroad because it is grossly disproportionate to the objective it seeks toachieve. The appellants conflate overbreadth and gross disproportionality.

Heywood suggested that gross disproportionality was aconcept subsumed by overbreadth: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p.793). However, gross disproportionality seemed to be recognized as a distinct breach of principles of fundamental justice in themarihuana case R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571. Some confusion arises from the fact that Malmo-Levine’scompanion case R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, could be read as suggesting that gross disproportionality is simply thestandard by which overbreadth is measured.

Indeed, this Court wrote in Clay that “[o]verbreadth . . . addresses the potential infringementof fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grosslydisproportionate to the state interest the legislation seeks to protect” (para. 38 (emphasis in original)). [39] The authorities continue to suggest that overbreadth and gross disproportionality are — at least analytically —distinct. Indeed, Professor Hogg refers to gross disproportionality as the “sister” doctrine of overbreadth (P. W. Hogg, ConstitutionalLaw of Canada (5th ed.

Supp.), vol. 2, at p. 47-58). Further, in Canada (Attorney General) v. PHS Community Services Society, 2011SCC 44, [2011] 3 S.C.R. 134, this Court considered overbreadth and gross disproportionality under separate headings (paras. 133-35). [40] For the purposes of this appeal, I need not decide whether overbreadth and gross disproportionality are distinctconstitutional doctrines. Certainly, these concepts are interrelated, although they may simply offer different lenses through which toconsider a single breach of the principles of fundamental justice.

Overbreadth occurs when the means selected by the legislator arebroader than necessary to achieve the state objective, and gross disproportionality occurs when state actions or legislative responses to aproblem are “so extreme as to be disproportionate to any legitimate government interest”: PHS Community Services Society, at para. 133;see also Malmo-Levine, at para. 143.

In order to address the appellants’ s. 7 constitutional challenge, I will (1) examine the scope of thelaw (2) determine the objective of the law and (3) ask whether the means selected by the law are broader than necessary to achieve thestate objective and whether the impact of the law is grossly disproportionate to that objective. Thus, I will examine both overbreadth andgross disproportionality in a single step, without however deciding whether they are distinct constitutional doctrines. (

b) The Scope of the Law

[41]

Section 83.18(1) criminalizes participation in or contributions to the activities of a terrorist group. It requires forconviction that the accused (

a) knowingly (

b) participate in or contribute to, (

c) directly or indirectly, (

d) any activity of a terrorist group,(

e) for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. Subsection (2) specifiesthat, in order to secure a conviction, the Crown does not have to prove that (

a) the terrorist group actually facilitated or carried out aterrorist activity, that (

b) the accused’s acts actually enhanced the ability of a terrorist group to do so, or that (

c) the accused knew thespecific nature of any terrorist activity facilitated or carried out by a terrorist group. As the Ontario Court of Appeal found in UnitedStates of America v. Nadarajah (No. 1), 2010 ONCA 859, 109 O.R. (3d) 662: . . . s. 83.18 applies to persons who, by their acts, contribute to or participate in what they know to be activities of whatthey know to be a terrorist group.

In addition, those acts must be done for the specific purpose of enhancing the ability of that terroristgroup to facilitate or carry out activity that falls within the definition of terrorist activity. [para. 28] [42] The appellants argue that s. 83.18 is overbroad because it captures conduct that does not contribute materially to thecreation of a risk of terrorism, such as direct and indirect participation in legitimate, innocent and charitable activities carried out by aterrorist group.

They contend that, “[i]n the absence of some explicit disassociation from the group’s terrorist ideology, participating inany activity of the group could be viewed as intending to enhance the group’s abilities to carry out terrorist activities” (Nadarajah factum,at para. 35 (emphasis added)). Thus, innocent individuals, who may or may not sympathize with the cause of a terrorist group, could beconvicted under s. 83.18 purely on the basis of attending a visibility-enhancing event held by the charitable arm of a group that alsoengages in terrorist activity.

Professor Roach has opined that even lawyers and doctors who legitimately provide their professionalservices to a known terrorist could be convicted under s. 83.18: see K. Roach, “The New Terrorism Offences and the Criminal Law”, inR. J. Daniels, P. Macklem and K.

Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (2001), 151, at p. 161.According to the appellants, these scenarios demonstrate that the law is overbroad. [43] The first step in assessing the validity of this argument is to interpret s. 83.18 to determine its true scope: Ontario v.Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, per Lamer C.J., at para. 10. [44] The Terrorism

section of the Criminal Code, like any statutory provision, must be interpreted with regard to itslegislative purpose. That purpose is “to provide means by which terrorism may be prosecuted and prevented” (Application under s.83.28 of the Criminal Code (Re), at para. 39) — not to punish individuals for innocent, socially useful or casual acts which, absent anyintent, indirectly contribute to a terrorist activity. [45] This purpose commands a high mens rea threshold.

To be convicted, an individual must not only participate in orcontribute to a terrorist activity “knowingly”, his or her actions must also be undertaken “for the purpose” of enhancing the abilities of aterrorist group to facilitate or carry out a terrorist activity. The use of the words “for the purpose of” in s. 83.18 may be interpreted asrequiring a “higher subjective purpose of enhancing the ability of any terrorist group to carry out a terrorist activity”: K. Roach,“Terrorism Offences and the Charter: A Comment on R. v. Khawaja” (2007), 11 Can. Crim.

L.R. 271, at p. 285. [46] To have the subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a terroristactivity, the accused must specifically intend his actions to have this general effect.

The specific nature of the terrorist activity, forexample the death of a person from a bombing, need not be intended (s. 83.18(2)(c)); all that need be intended is that his action willenhance the ability of the terrorist group to carry out or facilitate a terrorist activity. [47] The effect of this heightened mens rea is to exempt those who may unwittingly assist terrorists or who do so for avalid reason.

Social and professional contact with terrorists — for example, such as occurs in normal interactions with friends and familymembers — will not, absent the specific intent to enhance the abilities of a terrorist group, permit a conviction under s. 83.18. Theprovision requires subjective fault, as opposed to mere negligent failure to take reasonable steps to avoid unwittingly assisting terrorists: see K. Roach, “Terrorism Offences and the Charter: A Comment on R. v. Khawaja”, at p. 285.

For example, a lawyer who represents aknown terrorist may know that, if successful at trial, his client will thereafter pursue his contributions to terrorism. However, the lawyercould only be convicted under s. 83.18 if his intent was specifically to enable the client to pursue further terrorist activities, as opposed tosimply affording his client a full defence at law. [48] To convict under s. 83.18, the judge must be satisfied beyond a reasonable doubt that the accused intended toenhance the ability of a terrorist group to facilitate or carry out a terrorist activity.

There may be direct evidence of this intention. Or theintention may be inferred from evidence of the knowledge of the accused and the nature of his actions. [49] The appellants argue that, even if the scope of s. 83.18 is narrowed by the high mens rea requirement, it is stilloverbroad because it captures conduct that, while perhaps animated by the intent to enhance the abilities of a terrorist group, isessentially harmless.

For example, a person who marches in a non-violent rally held by the charitable arm of a terrorist group, with thespecific intention of lending credibility to the group and thereby enhancing the group’s ability to carry out terrorist activities, is notnecessarily contributing to terrorism in any meaningful way. Yet, on the basis of the plain meaning of s. 83.18, that person could beconvicted for participating in terrorism. [50] This argument relies on an incorrect

interpretation of s. 83.18. The actus reus of s. 83.18 does not capture conductthat discloses, at most, a negligible risk of enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.Although s. 83.18(1) punishes an individual who “participates in or contributes to . . . any activity of a terrorist group”, the context makesclear that Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm. Indeed, theoffence carries with it a sentence of up to 10 years of imprisonment and significant stigma.

This provision is meant to criminalizeconduct that presents a real risk for Canadian society. [51] A purposive and contextual reading of the provision confines “participat[ion] in” and “contribut[ion] to” a terroristactivity to conduct that creates a risk of harm that rises beyond a de minimis threshold.

While nearly every interaction with a terroristgroup carries some risk of indirectly enhancing the abilities of the group, the scope of s. 83.18 excludes conduct that a reasonable personwould not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.

[52] The determination of whether a reasonable person would view conduct as capable of materially enhancing theabilities of a terrorist group to facilitate or carry out a terrorist activity hinges on the nature of the conduct and the relevantcircumstances. For example, the conduct of a restaurant owner who cooks a single meal for a known terrorist is not of a nature tomaterially enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity: K. E. Davis, “Cutting off the Flow ofFunds to Terrorists: Whose Funds? Which Funds?

Who Decides?”, in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill,299, at p. 301. By contrast, giving flight lessons to a known terrorist is clearly conduct of a nature to materially enhance the abilities of aterrorist group to facilitate or carry out a terrorist activity: House of Commons Debates, vol. 137, No. 95, 1st Sess., 37th Parl., October16, 2001, at p. 6165 (Hon. Anne McLellan). [53] I conclude that a purposive

interpretation of the actus reus and mens rea requirements of s. 83.18 excludesconvictions (

i) for innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group tofacilitate or carry out a terrorist activity, and (ii) for conduct that a reasonable person would not view as capable of materially enhancingthe abilities of a terrorist group to facilitate or carry out a terrorist activity. [54] Having determined that the scope of the law is narrower than was argued by the appellants, I turn to the second stepof the analysis, the objective of the law. (

c) The Objective of the Law [55] The parties agree that the objective of the terrorism provisions is to prosecute and prevent terrorism. The need toprosecute acts that support or assist terrorist activity that may never materialize into acts of terrorism flows from the great harm resultingfrom terrorism offences, the Crown contends. The appellants agree that it is legitimate for the state to prevent terrorist acts from takingplace. (

d) Are the Impugned Provisions Broader Than Necessary or Is Their Impact Disproportionate? [56] Finally, I must ask whether the impugned provisions are broader than necessary to prevent and prosecute terrorism,or have an impact that is grossly disproportionate to that objective. [57] The appellants argue that, in relation to its objective, s. 83.18 is broader than necessary and has a grosslydisproportionate impact because it criminalizes acts (1) which do not disclose a risk of harm, (2) which are not connected to a real orcontemplated terrorist act, and (3) which are preliminary to the commission of an inchoate offence.

The first two arguments areanswered by the limited scope of s. 83.18. As we have seen, conviction under s. 83.18 entails (1) an actus reus that excludes conductthat a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out aterrorist activity, and (2) a high mens rea (specific intent to enhance the abilities of a terrorist group to facilitate or carry out a terroristactivity). The Crown must prove both these elements beyond a reasonable doubt.

Conduct that meets both these requirements discloses anon-negligible risk of harm and is sufficiently connected to real or contemplated terrorist activity. [58] As stated above, the appellants’ third argument is that the impact of s. 83.18 is grossly disproportionate toParliament’s objective of curbing terrorism because it criminalizes acts that are preliminary to the commission of an inchoate offence. The appellants agree that stopping a terrorist act before it takes place is a legitimate legislative objective.

However, they argue that theexisting crimes of conspiracy and attempt are sufficient to achieve this objective, and that it is unnecessary and disproportionate to reachback further and criminalize activity that is preliminary or ancillary to those preparatory acts. [59] The appellants rely on this Court’s statement in R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, per Fish J., thatcriminal liability does not attach “to fruitless discussions in contemplation of a substantive crime that is never committed, nor evenattempted, by any of the parties to the discussions” (para. 37).

They argue that s. 83.18 goes even further and criminalizes “indirect andfruitless contributions to non-terrorist activities where the intention is to enhance the ability of a group to commit such preliminary actsas conspiring or counselling, even where no terrorist act is facilitated or carried out and the accused is unaware of the specific nature ofthe act contemplated” (Nadarajah factum, at para. 43). [60] In my opinion, Déry does not assist the appellants. First, Déry was concerned with

interpretation, not constitutionalboundaries. Indeed, the reasons contemplate that Parliament could, if it wished, create an offence of attempted conspiracy: “Recognition of attempted conspiracy as a crime might well capture cases of feigned agreement, but this sort of change in the law is bestleft to Parliament” (para. 36). [61] Second, the reason given in Déry for not punishing acts preceding the commission of an inchoate offence is that suchacts would not be sufficiently proximate to a substantive offence and the harmful conduct that it seeks to address (see paras. 43-46).

Here, there is no problem of remoteness from a substantive offence because Parliament has defined the substantive offence, not as aterrorist act, but as acting in ways that enhance the ability of a terrorist group to carry out a terrorist activity. [62] I return to the central question: Is s. 83.18 broader than necessary or does it have a grossly disproportionate impact,considering that the state objective is the prevention and prosecution of terrorism? It is true that s. 83.18 captures a wide range ofconduct.

However, as we have seen, the scope of that conduct is reduced by the requirement of specific intent and the exclusion ofconduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carryout a terrorist activity. On the other side of the scale lies the objective of preventing the devastating harm that may result from terroristactivity. When the tailored reach of the

section is weighed against the objective, it cannot be said that the selected means are broaderthan necessary or that the impact of the

section is disproportionate. [63] I add this. The breadth of the impugned provisions reflects Parliament’s determination that “there is substantiveharm inherent in all aspects of preparation for a terrorist act because of the great harm that flows from the completion of terrorist acts”: R. v. Ahmad (2009), (ON SC), 257 C.C.C. (3d) 199 (Ont. S.C.J.), at para. 60. In the context of the present analysis,it is appropriate to exhibit due deference to this determination. The criminalization under s. 83.18 of a broad range of interactions thathave the potential to — and are intended to — materially enhance the abilities of terrorist groups is not grossly disproportionate nor

overbroad in relation to the objective of prosecuting and, in particular, of preventing terrorism. [64] For the foregoing reasons, I conclude that s. 83.18 does not violate s. 7 of the Charter. 2. Does the Law, Specifically

Section 83.01(1)(b)(i)(A), Infringe

Section 2 of the Charter? (

a) Does the Purpose of the Law Violate Freedom of Expression? [65] The appellants in the companion appeals argue that

Part II.1 of the Criminal Code criminalizes expressive activityand therefore infringes the s. 2 guarantees of freedom of expression, freedom of religion and freedom of association. A law may limit, orinfringe, a right either by its purpose or by its effect. The appellants contend that the terrorism legislation, by its very purpose, limits therights guaranteed by s. 2 of the Charter. [66] The critical right at issue is freedom of expression, because the s. 2(

b) argument as framed is the broadest of theCharter infringement claims. If freedom of expression is not infringed, on the facts of this case there is no basis to contend that freedomof religion and association are infringed, as the Court of Appeal observed in this appeal (para. 96). [67] The activities targeted by the legislation — committing a terrorist activity, assisting in the commission of a terroristactivity, enhancing the ability of others to commit a terrorist activity and instructing others in the commission of a terrorist activity — arein a sense expressive activities.

However, violent activities are not protected by s. 2(b): Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927. The Crown argues that this extends to all the conduct caught by the terrorism provisions ofthe Criminal Code and that consequently, s. 2(

b) protections do not apply to

Part II.1 of the Criminal Code. [68] The appellants accept that activity that takes the form of violence is not protected by s. 2(b). However, they arguethat the Court of Appeal noted that this Court has not yet set out “the exact parameters of the violence exception to the broad meaning ofexpressive activity protected by s. 2(b)” (C.A. Khawaja, at para. 102). The violence exception, it is argued, should be construednarrowly to exclude from s. 2(

b) protection only expressive activity that involves actual physical violence. [69] The trial judge in the companion cases, Pattillo J., held that the violence exception extends to threats and other actssupporting violent activity.

The Court of Appeal in this case found it unnecessary to decide the issue, holding that even if conductcaptured by the definition of “terrorist activity” fell within s. 2(b), the conduct would nevertheless not be protected because it underminesthe values underlying the right to freedom of expression — the pursuit of truth, participation in society and individual self-fulfillment. [70] This Court’s jurisprudence supports the proposition that the exclusion of violence from the s. 2(

b) guarantee of freeexpression extends to threats of violence: Greater Vancouver Transportation Authority v. Canadian Federation of Students — BritishColumbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 28; Suresh v. Canada (Minister of Citizenship and Immigration),2002 SCC 1, [2002] 1 S.C.R. 3, at para. 107; RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573, at p. 588. Asthis Court held in Greater Vancouver Transportation Authority, “violent expression or threats of violence fall outside the scope of the s.2(

b) guarantee” (para. 28 (emphasis added)). It makes little sense to exclude acts of violence from the ambit of s. 2(b), but to conferprotection on threats of violence. Neither are worthy of protection. Threats of violence, like violence, undermine the rule of law. As Iwrote in dissent in R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, threats of violence take away free choice and underminefreedom of action. They undermine the very values and social conditions that are necessary for the continued existence of freedom ofexpression (pp. 830-31). I therefore reject that the violence exception to s. 2(

b) is confined to actual physical violence, without howeverdeciding the precise ambit of the exception. Threats of violence fall outside the s. 2(

b) guarantee of free expression. [71] Most of the conduct caught by the terrorism provisions in

Part II.1 of the Criminal Code concerns acts of violence orthreats of violence. As such, the conduct falls outside the protection of s. 2(

b) of the Charter. The violent nature of the conduct targetedis clear.

Part II.1 prohibits acts of serious violence and threats of such acts, which go beyond the scope of protected expressive activity. A “terrorist activity” is defined as

an act or an omission that “intentionally” “causes death or serious bodily harm”, “endangers a person’slife”, “causes a serious risk to the health or safety of the public”, or “causes substantial property damage . . . likely to result” in thesebodily harms: s. 83.01(1)(b)(ii)(A), (B), (

C) and (D). These acts, and threats to commit them, constitute serious violence or threats ofserious violence, and hence are not protected by s. 2(b). The provision also captures counselling, conspiracy and being an accessory afterthe fact in relation to conduct enumerated in s. 83.01(1)(b)(ii)(A), (B), (

C) and (D). I need not decide whether counselling, conspiracy orbeing an accessory after the fact fall within the violence exception to the free expression guarantee as a general matter. In the case ofthe impugned terrorism provisions, however, the conduct enumerated in s. 83.01(1)(b)(ii)(A), (B), (

C) and (

D) rises to a high level ofgravity. The particular nature of the enumerated conduct justifies treating counselling, conspiracy or being an accessory after the fact tothat conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents.Consequently, counselling, conspiracy or being an accessory after the fact to conduct enumerated in s. 83.01(1)(b)(ii)(A), (B), (

C) and(

D) can find no protection under s. 2(b). [72] More problematic is the extension of the meaning of “terrorist activity” in s. 83.01(1)(b)(ii)(E), which catches “anact or omission . . . that . . . causes serious interference with or serious disruption of an essential service, facility or system, whetherpublic or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct orharm referred to in any of clauses (

A) to (C)”. This provision, it is argued, captures “interference” and “disruption” that involve neitherviolence nor threats of violence, and that thus may be protected by the free expression guarantee of s. 2(

b) of the Charter. [73] Read as a whole and purposively, s. 83.01(1)(b)(ii)(

E) is confined to the realm of acts of violence and threats ofviolence. The clause is directed to acts that intentionally interfere with essential infrastructure, upon which people depend, and withoutwhich life may be seriously disrupted and public health threatened. First, clause (

E) is confined to “serious interference” and “seriousdisruption”. Second, this disruption must be to an “essential service, facility or system”. Third, the clause specifically excludes“advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (

A) to(C)”. Clauses (

A) to (

C) respectively target death or bodily harm by violence, endangering a person’s life and serious risk to the health orsafety of the public. This removes from the ambit of clause (

E) a large slice of expressive activity, provided it is not aimed at the violent,dangerous ends contemplated in clauses (

A) to (C).

[74] I am not persuaded on the submissions before us that the activities targeted by s. 83.01(1)(b)(ii)(

E) fall within theprotected zone of free expression. This said, I would not rule out the possibility that s. 83.01(1)(b)(ii)(

E) might in some future case befound to capture protected activity. In such a case, the issue would be whether the incursion on free expression is justified under s. 1 ofthe Charter. [75] I conclude that the purpose of the law does not infringe freedom of expression. (

b) Does the Effect of the Law Violate Freedom of Expression? [76] The appellants all argue that s. 83.01(1)(b)(i)(A), the motive clause, is unconstitutional because (1) it has the effectof chilling the exercise of freedom of expression, freedom of religion and freedom of association; and (2) it would legitimize lawenforcement action aimed at scrutinizing individuals based on their religious, political or ideological beliefs.

The trial judge in this caseaccepted this argument and severed the motive clause; the Court of Appeal disagreed and restored it. [77] The Crown responds that there is no evidence of a chilling effect on expression or of illegitimate targeting. Therespondent further argues that the conduct caught by the provisions is not protected by the s. 2(

b) guarantee, as it amounts to violence orthreats of violence and does not fall within the purposes that underlie the guarantee. If there is no chilling effect with respect to theexercise of freedom of expression, there can be none with respect to freedom of religion or association. [78] The first question is what sort of evidentiary basis is required to establish that legislation has a chilling effect on theexercise of s. 2 freedoms. The appellants say that a chilling effect can be inferred on the basis of logic, common sense and the academicliterature, as the trial judge did.

The respondent says that there must be proof of a chilling effect in the form of credible empirical oranecdotal evidence, as the Court of Appeal held. [79] In some situations, a chilling effect can be inferred from known facts and experience. For example, no reasonableperson would dispute that a law that makes the press liable in damages for responsible reporting on political figures will probably have achilling effect on what the press says. In such a case, it may be unnecessary to call evidence of a chilling effect.

Therefore, if the Courtof Appeal is understood as suggesting that a claimant under s. 2 of the Charter must always call evidence of a chilling effect, I could notagree. [80] However, in this case, it is impossible to infer, without evidence, that the motive clause will have a chilling effect onthe exercise of s. 2 freedoms by people holding religious or ideological views similar to those held by some terrorists.

The reasons of theCourt of Appeal detail why such an inference cannot be made. [81] First, a causal connection between the motive clause and the chilling of expression of religious or ideological viewshas not been demonstrated. The chill in the expression of religious and ideological views referred to by the trial judge flowed from thepost-“9/11” climate of suspicion, not from the motive clause in the terrorism legislation. [82] Second, a chilling effect that results from a patently incorrect understanding of a provision cannot ground a findingof unconstitutionality.

Indeed, the motive clause would only have a chilling effect on individuals who have cursory or incompleteknowledge of s. 83.01. Anyone who reads the entire provision will take notice of s. 83.01(1.1), which expressly declares that “terroristactivity” within the meaning of the Criminal Code does not include the non-violent expression of a political, religious or ideologicalthought, belief or opinion.

Only individuals who go well beyond the legitimate expression of a political, religious or ideological thought,belief or opinion, and instead engage in one of the serious forms of violence — or threaten one of the serious forms of violence — listedin s. 83.01(1)(b)(ii) need fear liability under the terrorism provisions of the Criminal Code. [83] Third, any chilling effect that results from police misconduct, such as profiling based exclusively on ethnicity orreligious belief, is not a chill created by the terrorism legislation.

I agree with the following statement made by the Court of Appeal, atpara. 134: Nor can improper conduct by the state actors charged with enforcing legislation render what is otherwise constitutional legislationunconstitutional. Where the problem lies with the enforcement of a constitutionally valid statute, the solution is to remedy that improperenforcement, not to declare the statute unconstitutional: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000SCC 69,] 2000 SCC 69 , [2000] 2 S.C.R. 1120, . . . at paras. 133-35.

Criminal liability should not be based on a person’s political, religious or ideological views. Police should not target people as potentialsuspects solely because they hold or express particular views. Nor should the justice system employ improper stereotyping as a tool inlegislation, investigation or prosecution. In the present case, the impugned provision is clearly drafted in a manner respectful of diversity,as it allows for the non-violent expression of political, religious or ideological views.

It raises no concerns with respect to improperstereotyping. [84] For these reasons, I agree with the Court of Appeal that the appellants have not established that the motive clause hasa chilling effect on the exercise of s. 2 liberties and results in an infringement of s. 2 of the Charter. The motive clause is constitutionaland need not be excised from the law, as the trial judge held. This is not altered by the fact that terrorist legislation in some countriesdoes not contain a motive clause, or by the argument that the clause is unnecessary to the Canadian legislative scheme. 3.

Conclusion on the Constitutionality of the Law [85] I conclude that the impugned provisions do not infringe s. 7 or s. 2 of the Charter. It is therefore unnecessary toconsider s. 1 of the Charter. B. Was the Law Correctly Applied?

1. Did the Deletion and Subsequent Re-insertion of the Motive Clause Make the Trial and Convictions Unfair? [ 86 ] The trial judge found the motive clause unconstitutional and severed it. The trial proceeded on the basis that this clause was removed from the legislation, and the accused was convicted on the charges from which he appeals. The Court of Appeal held that the motive clause is constitutional and should not have been severed.

It nevertheless upheld the convictions under the curative proviso of the Criminal Code , s. 686(1)( b )(iii), on the ground that the trial judge concluded that motive had been proven in any event. [ 87 ] The appellant argues that the removal and later re-insertion of the motive clause made his trial and the convictions unfair. He argues that he has been convicted of different crimes on appeal than those he faced at trial. The curative proviso cannot be applied, he argues, to errors committed by a trial judge that compromise the fairness of the trial.

By convicting the appellant of different charges (i.e. under different provisions) than he faced at trial, the Court of Appeal ran afoul of this principle. The appellant says that had motive been an essential element of the offence at trial, he would have testified in his own defence to raise a reasonable doubt. [ 88 ] I cannot accept the appellant’s submissions. First, the trial judge made a specific factual finding that the motive component of the definition of terrorist activity had been proved beyond a reasonable doubt, which suffices to fully support the motive requirement of the convictions.

At para. 89, he stated: . . . I consider my pre-trial ruling [concerning the constitutionality of the motive clause] to have no real effect on the case.

I say that because there is such an abundance of evidence that what was being done by Khawaja, Babar, Khyam, and his associates was clearly motivated “in whole or in part for a political, religious or ideological purpose, objective or cause.” Whether that is an essential ingredient of these offences or not, it has been abundantly proven. [Emphasis added.] [ 89 ] Second, the evidence of motive and the appellant’s knowledge that the motive was shared by him and the Khyam terrorist cell was overwhelming and essentially undisputed. The appellant’s extremist religious ideology suffused his actions and emails.

He literally describes dedicating his life to violent jihad. His own correspondence established beyond dispute that his religious motive was shared by Khyam and the other “bros” in the terrorist cell, and that the appellant was aware of that fact. The appellant’s motives were, simply put, beyond reasonable doubt. [ 90 ] Third, there is no air of reality to the appellant’s statement that he could have taken the stand and testified to raise a reasonable doubt on motive, had the clause not been struck.

The facts just recited completely undermine the idea that it would have been possible for the appellant to offer testimony putting in doubt his knowledge that the Khyam terrorist cell shared his religious motivation and commitment to violent jihad. [ 91 ] Fourth, it is disingenuous of the appellant to claim that, but for the pre-trial ruling on the constitutionality of the motive clause, he would have made different tactical decisions during the course of his trial. Although the pre-trial ruling removed motive as a legal issue, motive remained a live factual issue.

Crown evidence regarding motive had the potential to ground inferences with respect to the legal issues of knowledge and intent to enhance the abilities of a terrorist group to carry on or facilitate a terrorist activity. There is simply no credible basis on which to conclude that the appellant’s defence would have been conducted differently absent pre-trial severance of the motive clause. [ 92 ] In essence, this is a case where no prejudice flowed from the re-insertion of an essential element of the offence on appeal.

It is abundantly clear that the trial judge would have convicted with or without the motive clause, and it is irrational to suppose that the overwhelming evidence of religious, political and ideological motivation could have been challenged. [ 93 ] This is an exceptional result, appropriate in the exceptional circumstances of this case. Generally speaking, if an appellate court finds that the offence for which an appellant was convicted includes an additional essential element, fairness would require ordering a new or directed trial.

In this particular case, however, this Court can be confident that the appellant suffered no prejudice deserving of a new trial only because the evidence on the additional element of the offence was overwhelming, as indeed the trial judge found, and it is plain that the appellant’s strategy would not have changed had the element been recognized at trial. [ 94 ] I would dismiss the argument that the Court of Appeal erred in applying the curative proviso and upholding the convictions. 2.

Does the Armed Conflict Exception Apply? [ 95 ] Counts 3 to 7 arguably dealt with insurgent activities in relation to Afghanistan. The appellant claims that to the extent that his involvement with these activities was shown, he fell within the armed conflict exception to the definition of terrorist activity.

The appellant contends that the onus was on the Crown to prove beyond a reasonable doubt that he did not fall within the armed conflict exception, and that the Crown did not do this. [ 96 ] The trial judge held that the appellant was not engaged in armed conflict, because his conduct did not fall within the definition of the term, and because there was no armed conflict underway in Canada, Pakistan and the United Kingdom, where the alleged acts were carried out. He took judicial notice of the conflict in Afghanistan and of the counter-insurgency against the government and the civilian population.

The Court of Appeal affirmed the propriety of taking judicial notice and the finding that the alleged activities did not fall within the armed conflict exception. However, it held that the trial judge erred in holding that the armed conflict exception is restricted to acts or omissions carried out within the territorial limits of an area of armed conflict. [ 97 ] A number of sub-issues emerge. The first is whether the Crown must prove beyond a reasonable doubt that the armed conflict exception is inapplicable.

The second concerns the use of judicial notice to decide whether the alleged acts fall within a particular armed conflict or not. The third is the scope of the armed conflict exception to the definition of terrorist activity. [ 98 ] On the burden of proof, the Crown bears the burden of proving beyond a reasonable doubt that the acts alleged

against an accused fall within the definition of terrorist activity. The ultimate burden of showing this is on the Crown, and any reasonable doubt must be resolved in the accused’s favour. However, the armed conflict exception functions as a defence. The accused must raise the exception and make a prima facie case that it applies. In the present appeal, the accused could not make a prima facie case that the exception applied, as there was no evidential foundation to support its applicability.

There was simply no air of reality to the claim that the armed conflict exception applied. [ 99 ] On the second issue, I agree with the courts below that judicial notice could be taken of the ongoing war in Afghanistan and the counter-insurgency acts in that country which, subject to the armed conflict exception, meet the definition of terrorist activity. These facts were beyond contestation, and thus meet the test for judicial notice. [ 100 ] The critical question in this case is whether the conduct of the appellant, as found by the trial judge, falls within the scope of the armed conflict exception.

Like the courts below, I conclude that it did not. The purpose of the armed conflict exception is to exempt conduct taken during an armed conflict in accordance with applicable international law.

There is no evidential foundation for the application of this exception in the present case: the conduct cannot be said to have been taken solely in support of an armed conflict, nor was it in accordance with applicable international law. [ 101 ] First, the trial judge expressly found that the appellant knew that the Khyam group’s terrorist activities extended beyond the armed conflict in Afghanistan, and supported these terrorist objectives (paras. 130-31). Thus, the appellant’s actions were not “directed solely at supporting the insurgency in Afghanistan” (C.A., at para. 168).

Even if the appellant’s efforts with respect to Afghanistan could be considered part of an armed conflict governed by international law, the verdicts would stand. [ 102 ] Second, the evidence is overwhelmingly contrary to the proposition that the appellant’s acts were part of an armed conflict governed by international law. There is no air of reality to the suggestion that the appellant believed that the Khyam group intended to act in compliance with international law, or that he cared if it did. The evidence showed only that “the appellant was a fervent purveyor of hatred, anti-Semitism, rel

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