R. v. Khawaja Case Review

Introduction

1. v. Khawaja is a landmark case in which the Supreme Court of Canada (SCC) presented a hallmark ruling on the constitutionality of criminalizing of terrorism in Canada. The case involved Mohammad Momin Khawaja, a Canadian born Al Qaeda terror group associated individual whose actions the Ontario Court of Appeal found to have amounted to the motive of promoting the actions of a terror group that not only posed a threat inside Canada but also outside Canada. With an appeal to the Supreme Court of Canada, the apex court in Canada established that the ruling by the Court of Appeal was indeed constitutional and thus held the judgment of life imprisonment handed down by the Court of Appeal. This paper reviews the case based on the issue(s) in the case, the current position of the Canadian law based on this case, and the public policy issues involved in the case.

The Issue(s) In the Case

In the appeal at the SCC, three significant issues were apparently raised by the appellant (Khawaja) in the case. Firstly, Khawaja argued that the provisions for terror in the Code were unconstitutional. Secondly, he objected to the provisions of terror adopted by the Ontario Court of Appeal to have been applied incorrectly. Thirdly, he argued that the Court of Appeal unreasonably sentenced him to a life sentence. It is important to note that the provisions of the law as it applies in this case and as adopted by the SCC are embedded in section 83.01(1) and section 83.18(1) of the Code. Section 83.01(1) presents a definition of what the law considers as a “terrorist activity” while Section 83.18(1) clarifies the provisions for the prohibition of terrorist activities. It was apparent that the explication of a terrorist activity according to Section 83.01(1) was that it is “an act or omission, in or outside Canada that is committed in whole or in part for a political, religious or ideological purpose, objective or cause.”  

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In evaluating the actions of the defendant, it was obvious that the Mens Rea that was evident in his undertakings was so high that it could not be confused with an unknowing intention. In other words, his motives were clear that indeed, he was not only in support of but was actually a member of a terror group and that he was not only a threat to Canada but to the whole world as well. So in an actual sense, in accordance with the Court of Appeal’s ruling, the SCC was justified to expunge the appellant’s argument on the unconstitutionality of Section 83.01(1) backed by the evident prima facie such as the appellant being arrested with a terrorist activity intended bomb as well as financing terrorists. The correct application of the Section 83.01(1) did not violate the appellant’s expressive activity as provided for in section 2(b) of the Charter. Therefore, the provisions for terror in the Code as employed by the Ontario Court of Appeal were not unconstitutional as argued by the appellant and neither did the Appeal Court apply it incorrectly.

On the other hand, Section 83.18(1) expressly outlines the parameters through which an action can be equated to an act of terror or that which supports or fuels an act of terror. It states that “Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.” It is indisputable that Khawaja’s motives were clear and vividly exemplified a man who had made up his mind to be part of a terror group whether directly or indirectly. Firstly, he attended a terrorist radicalization and combat training in Pakistan. Secondly, He financed terrorists linked to the Al Qaeda in the United Kingdom (UK) and as a way to prove that his motives were indeed sinister adopted an alias and used an innocent woman in Ontario to hide his criminal intents and hinder any possible suspicions. Thirdly, he was caught with a detonating device branded “the hifidigimonster” that was to be used for a terrorist activity in the UK (Lee, 2009). Delineating the outlined acts to the provisions for terrorism in Section 83.18(1) of the Code it is obvious that the appellant was aware of his participation and contributions to the advancement of the activities of a terror group and was thus liable to the sentence described within that specific law. Concisely, in resonance with Khawaja’s the application of Section 83.18(1) of the Code did not contravene section 7 of the Charter. 

Current Position of the Canadian Law Based On This Case

Based on this case, it is apparent that Canada’s laws in criminalizing terrorism are constitutional and that the definition and the characterization of terrorist activities inside and outside Canada are clearly captured in the law. The Anti-terrorism Act (ATA), which amended the Criminal Code, presents clear sets of provisions for dealing with suspected instances of terror activities as was the case in R. v. Khawaja including aspects such as terrorism offenses and the prohibition of terrorism financing (Department of Justice, 2017).

Public Policy Issues Involved In the Case

It is indisputable that the landmark decision made by the SCC in the R. v. Khawaja case outlines significant public policy issues. Firstly, it explicates the significance of the government to set up mechanisms that may facilitate its cooperation with other international bodies to combat terror crimes carried out by its citizens in other countries not necessarily Canada. Secondly, the case also makes it important to devise mechanisms for empowering the public to understand the provisions of the law on actions that amount to terror support or involvement. Taking cognizant on the provision of sections 83.01(1) and 83.18(1) of the Code, it is apparent that the outcome of the case was satisfactory considering that the appellant’s actions amounted to a high level of Mens Rea. Furthermore, as the first case to have been successfully prosecuted under the terrorism provisions of the Code, the ruling will definitely become a future reference case for not only other rulings but as well as other legal and scholarly studies especially for its significance in outright criminalizing of terrorism in Canada. 

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Conclusion

In summary, referring to the R. v. Khawaja case, the overwhelming evidence brought before the various courts that the case went through including the Supreme Court, indicated Mr. Khawaja’s intent in terror activities. The rulings against his felony were thus justified.