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Canada: Anti-Terror Law Ruled Constitutional

(Dec. 18, 2012) On December 14, 2012, the Supreme Court of Canada issued two simultaneous rulings on three terrorism-related cases that involved issues of free speech, religious freedom, and the right of an individual to remain in <?Canada. The decisions "provided the final word on the constitutionality of key provisions in Canadian anti-terrorism laws" and affirmed the controversial legislation adopted in the aftermath of the September 11, 2001, attacks in the United States. (Kirk Makin, Supreme Court Upholds Anti-Terrorism Laws, THE GLOBE AND MAIL (Dec. 14, 2012).)

R. v. Khawaja

In the first ruling, the Court upheld the constitutionality of the country’s Anti-Terrorism Act (S.C. 2001, c. 41, Department of Justice website), part of which forms Part II.1 of the Criminal Code, articles 83.01-83.3 (R.S.C., 1985, c. C-46, Department of Justice website), and held that the anti-terrorism laws do not violate the constitutional rights of persons suspected of abetting terrorist acts. (Id.) It dismissed the appeal brought by Mohammed Momin Khawaja, who had challenged not only the “motive” aspect of the anti-terrorism provisions, which punish persons who express support for terrorist activity even if they do not knowingly facilitate specific terrorist acts, but also the definition section of the legislation. (Makin, supra; Criminal Code, R.S.C. 1985, c. C-46, § 83.01(1)(b)(i)(A), cited in R. v. Khawaja, 2012 S.C.C. 69, Appendix, Judgments of the Supreme Court of Canada website.)

Khawaja, who was arrested in March 2004 for alleged participation in terrorist group activities and facilitation of a terrorist activity, was the first person to be charged under the Act. (Addison Morris, Canada Supreme Court Upholds Anti-Terror Law, PAPER CHASE NEWSBURST (Dec. 14, 2012); Mohammad Momin Khawaja, CBC NEWS (May 22, 2009).)

As a result of the ruling, Khawaja will serve a life sentence on one count and 24 years of consecutive sentences for other counts for assisting a jihadist group based in England that had allegedly planned to commit violent acts abroad. The sentencing is based on the Ontario Court of Appeal decision, which

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. (R. v. Khawaja, supra, § 126.)

The trial judge had imposed a sentence amounting to a total of ten and a half years of imprisonment for all seven counts and “added the following terms: no parole eligibility for 5 years; a mandatory DNA order (stayed pending appeal); and a lifetime order prohibiting possession of firearms.” (Id. § 112.)

Chief Justice Beverley McLachlin, who wrote the Supreme Court’s unanimous 7-0 ruling, agreed with the Court of Appeal judgment that the sentence of ten and a half years that had been imposed by the trial judge: 1) “did not reflect the gravity of the appellant’s actions,” 2) did not give adequate weight to the ongoing danger the appellant would pose to society on release, and 3) failed to senda “clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it [in Canada] will pay a very heavy price” (citing to ¶ 246 of the Court of Appeal ruling). (R. v. Khawaja, §§ 127-130, supra.) McLachlin added, “[w]ithout suggesting that terrorism offences attract special sentencing rules or goals, I agree that denunciation and deterrence, both specific and general, are important principles in the sentencing of terrorism offences, given their seriousness … .” (Id. § 130.)

Sriskandarajah v. United States of America

The second Supreme Court ruling will facilitate the extradition of two Ontario men who are sought by the United States for allegedly helping in the acquisition of weapons to be used by Sri Lankan terrorists. (Sriskandarajah v. United States of America, 2012 SCC 70, Judgments of the Supreme Court of Canada website.) The defendants’ lawyers argued unsuccessfully “that provisions in the Anti-Terrorism Act defining terrorist acts are unconstitutionally broad.” (Makin, supra.)

Defendant Suresh Sriskandarajah, an alleged sympathizer of the Liberation Tigers of Tamil Eelam (the Tamil Tigers) and said to have been the leader of four suspects affiliated with Ontario’s University of Waterloo, is deemed to have helped launder money for the Taimil Tigers, conspired to procure equipment for them, and used students to smuggle the goods into Sri Lanka during the period 2004-2006, under the code name Waterloo Suresh. (Makin, supra; Brian Caldwell, ‘Waterloo Suresh’ Loses Legal Battle over Terrorism Charges, THE RECORD (Dec. 14, 2012).) Sriskandarajah was arrested in 2006; if convicted in the United States, he will face a sentence of up to 25 years’ imprisonment. (Caldwell, supra.)

The other defendant, Piratheepan Nadarajah, is also wanted by the United States for his alleged involvement with the Tamil Tigers. He, along with three other individuals –Sathajhan Sarachandran, Sahilal Sabaratnam and Thiruthanikan Thanigasalam – had allegedly attempted in 2006 to purchase on the Tamil Tigers’ behalf surface-to-air missiles and AK-47s from an undercover officer who was posing as a black market arms dealer in Long Island, New York. (Respondents’ Factum, in the Supreme Court of Canada (on Appeal from the Court of Appeal for Ontario), Between Piratheepan Nadarajah (Appellant) & The Attorney General of Canada on Behalf of the United States of America and The Minister of Justice (Respondents) & Attorney General of Ontario (Intervener), File No. 34013 (last visited Dec. 18, 2012).)