OTTAWA – The Supreme Court of Canada has declared the country’s controversial anti-terror law to be constitutional in a series of unanimous, precedent-setting rulings Friday that affirm how terrorism is defined in the Criminal Code.
In a 7-0 ruling written by Chief Justice Beverley McLachlin, the court dismissed a series of charter appeals brought by three men, including terrorist Momin Khawaja – the first person ever charged under the anti-terror law that was passed in the wake of the 9-11 attacks.
McLachlin said an Ottawa trial judge erred by giving Khawaja too light a sentence at 10 1/2 years in prison and said the life sentence later imposed by the Ontario Court of Appeal sent a “clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it (in Canada) will pay a very heavy price.”
The rulings also upheld extradition orders against two other men, Suresh Sriskandarajah and Piratheepan Nadarajah, who can now be sent to the United States to face trial on charges of supporting the Tamil Tigers, a banned terrorist group.
The court flatly rejected a series of constitutional challenges brought by the three men, dismissing arguments that the new law was too broad, criminalized harmless activity and violated the charter guarantee of freedom of expression.
The ruling essentially means the December 2001 anti-terror law – introduced by the then-Liberal government and supported by the two opposition parties that eventually became the present Conservative party – contains no rights violations and doesn’t have to be changed.
For Khawaja, it means the end of the road in a long, legal saga that began with his arrest in 2004, and ran through a hard-fought trial in an Ottawa courtroom and his 2008 conviction.
He was found guilty of training at a remote camp in Pakistan, providing cash to a group of British extremists and building a remote-control bomb detonator, known as the Hi-Fi Digimonster.
Justice Minister Rob Nicholson applauded the high court for upholding the harsher sentence.
“By upholding this sentence, the court sent a strong message that terrorism will not be treated leniently in Canada,” Nicholson said in a statement.
The Supreme Court dismissed the argument that the law was overbroad in its definition of terrorism and could ensnare innocent people.
“Social and professional contact with terrorists – for example, such as occurs in normal interactions with friends and family members – will not, absent the specific intent to enhance the abilities of a terrorist group, permit a conviction,” the ruling said.
It also dismissed a claim that the law violated the rights of free expression.
The court said threats of violence don’t deserve protection.
“Threats of violence, like violence, undermine the rule of law,” the court wrote.
“Threats of violence take away free choice and undermine freedom of action. They undermine the very values and social conditions that are necessary for the continued existence of freedom of expression.”
Khawaja’s lawyer Lawrence Greenspon said he was extremely disappointed with the ruling, but said it wouldn’t mean an end to the unfair targeting of ethnic or religious groups by authorities.
“It’s a very unfortunate ruling for minorities in this country,” said Greenspon.
“There’s just too many instances, recent and not so recent where persons have been investigated and prosecuted.”
The court also rejected the argument by Khawaja’s lawyer that the so-called motive clause would have a chilling effect on guarantees of freedom of expression of religious or ideological views.
“In this case, it is impossible to infer, without evidence, that the motive clause will have a chilling effect on the exercise of … freedoms by people holding religious or ideological views similar to those held by some terrorists,” the ruling said.
Khawaja also failed to persuade the court that his life sentence was too harsh.
“The appellant was a willing participant in a terrorist group,” McLachlin wrote. “He was committed to bringing death on all those opposed to his extremist ideology and took many steps to provide support to the group.
“The bomb detonators he attempted to build would have killed many civilians had his plan succeeded. A sentence of 10 1/2 years does not approach an adequate sentence for such acts.”
McLachlin said terrorism offences shouldn’t be subjected to sentencing principles that are different than other criminal acts.
“At the outset, I wish to underscore that the temptation to fashion rigid sentencing principles applicable to terrorism offences as a distinct class of offences should be avoided,” she wrote.
But as far as his client is concerned, that’s essentially what has happened, Greenspon said.
“They upheld what I feel is a crushing sentence imposed by the Court of Appeal. But at the same time they’ve said this is not the beginning of a new sentencing regime for terrorists in Canada.”
The court also dismissed Khawaja’s claim that he was taking part in an armed conflict and should be exempt from being charged under international law.
It rejected his contention that he didn’t recognize the threat posed by the British terrorist organization, the Khyam group.
“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 ruling stated.
Moreover, McLachlin said the evidence at Khawaja’s trial showed he “went to Pakistan to train for ‘combat’ in Afghanistan. His emails showed that he encouraged and applauded violent jihad. Particularly chilling is his email speaking in positive terms of using a troublesome person as a suicide bomber in an Israeli nightclub.”
Friday’s ruling excerpted one example from the emails Khawaja sent to Britain describing his detonation device:
“I just want to do a demo of it and show you how it works and stuff, its range, and other things. So we gotta find a way we can get it into UK, maybe I can courier it over, I don’t know if UK customs will grab it or not,” he wrote.
“Pray to the most high, he’ll find us a way. We’re starting to work on a few other much more sophisticated projects that can be of great benefit to the J, I’ll speak to you about them when we meet …”
Sriskandarajah and Nadarajah, meanwhile, failed in their bid to overturn their extradition to the U.S.
The high court affirmed that Nicholson didn’t err when he signed their extradition order.
“The claim that the minister’s decision was unreasonable must be rejected.”
Nicholson said he was pleased with that finding because the court “recognized that the principles of procedural fairness were appropriately respected in the extradition cases of Mssrs. Sriskandarajah and Nadarajah and that their surrender for extradition was justified.”
U.S. prosecutors allege the two men tried to purchase $1-million worth of guns and rockets for the Tamil Tigers.
Sriskandarajah is charged with acquiring aviation equipment, submarine and warship design software and other communications equipment for the Tigers. He is also charged with laundering money and counselling group members on how to smuggle goods.
Nadarajah is charged with trying to buy surface-to-air missiles and AK-47s for the Tigers from an undercover law enforcement officer posing as a black-market arms dealer.