R. v. Khawaja, 2012 SCC 69

In R. v. Khawaja, a companion case heard alongside Sriskandarajah v. United States of America, the Supreme Court of Canada considered the constitutional argument of convicted terrorist conspirator, Mohammad Momin Khawaja.

Khawaja asserted that s. 83.01(1)(b)(i)(A) of the Criminal Code, which defines terrorist activity as being “for a political, religious or ideological purpose, objective or cause,” violates Sections 2(a), 2(b), and 2(d) of the Charter (freedom of religion, freedom of expression, and freedom of association).

The Supreme Court of Canada rejected Khawaja’s argument, which had initially been accepted in part by the trial judge, finding that the violent nature of the conduct in question disqualified it for protection under Section 2 of the Charter:

The purpose of the law does not infringe freedom of expression. While the activities targeted by the Terrorism section of the Criminal 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 the conduct enumerated in ss. 83.01(1)(b)(ii)(A), (B), (C) and (D) justifies treating counselling, conspiracy or being an accessory after the fact to that conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents. As such, the conduct falls outside the protection of s. 2(b) of the Charter.

The Supreme Court therefore upheld the Court of Appeal’s conviction of Khawaja, as well as a life sentence for building a detonator to cause a deadly explosion.

Decided by the Supreme Court of Canada on December 14, 2012.
Click here for the full text of the decision.

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Filed under Section 2(b): Freedom of Expression, Section 2(d): Freedom of Association, Section 2: Fundamental Freedoms

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