Terrorism Offences and the Charter: A Comment on R. v. Khawaja

Abstract

The decision by justice Rutherford of the Ontario Superior Court in R. v. Khawaja is examined with respect to its ruling that the new terrorism offences first enacted in 2001 are not vague and overbroad and are consistent with Charter standards of fault, but that the requirement for proof of religious or political motive constitutes an unjustified violation of section 2 of the Charter and should be severed from the remaining definition of terrorist activities. The author suggests that the decision should be read as affirming constitutional standards of a knowledge fault requirement for terrorism offences because of their special stigma and punishment and that the qualification of the fault requirement with respect to the facilitation of terrorism offences remains problematic. Striking down of the political and religious motive requirement may be justified both because of its potentially harmful effects on those who may share political and religious beliefs with terrorists and on its harmful effects on the accused by requiring admission of political and religious motive evidence regardless of the balance between its probative value and prejudice. The severance of the political and religious motive requirement is, however, problematic because it opens the possibility that all serious violence designed to compel persons to act could be included in the judicially revised definition of terrorist activities. A more appropriate remedy would be strike down the reference to the compulsion of persons and define terrorism as intentional violence designed to compel governments to act or to intimidate populations.