The United States of America et al. v. Nadarajah [Indexed as: United States of America v. Nadarajah (No. 1)]

109 O.R. (3d) 662

2010 ONCA 859

Court of Appeal for Ontario,

Doherty, Moldaver and Cronk JJ.A.

December 17, 2010*

• This judgment was recently brought to the attention of the editors.

Charter of Rights and Freedoms -- Freedom of expression -- Terrorism -- Definition of "terrorist activity" in s. 83.01(1) (b) of Code not infringing freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2(b) -- Criminal Code, R.S.C. 1985, c. C-46, s. 83.01(1)(b).

Charter of Rights and Freedoms -- Fundamental justice -- Overbreadth -- Terrorism offence created by s. 83.18 of Code not unconstitutionally overbroad -- Criminal Code, R.S.C. 1985, c. C-46, s. 83.18.

Criminal law -- Extradition -- Surrender -- Minister of Justice ordering applicant's surrender to United States to stand trial on terrorism charges -- Minister's failure to provide applicant with requested copy of Cotroni assessment conducted by Canadian prosecuting authorities not depriving applicant of fair hearing -- Minister not provided with Cotroni assessment conducted by Canadian prosecuting authorities and conducting his own independent Cotroni assessment -- Applicant provided with document containing conclusion of Canadian prosecuting authorities that prosecution in Canada would not be equally as effective as prosecution in United States -- Minister's conclusion that applicant's right to remain in Canada under s. 6 of Charter would not be unjustifiably infringed by his surrender being reasonable -- Canadian Charter of Rights and Freedoms, s. 6.

Criminal law -- Terrorism -- Definition of "terrorist activity" in s. 83.01(1)(b) of Code not infringing freedom of expression -- Terrorism offence created by s. 83.18 of Code not unconstitutionally overbroad -- Criminal Code, R.S.C. 1985, c. C-46, ss. 83.01(1)(b), 83.18. [page663]

The United States of America sought N's extradition to stand trial on terrorism charges for his alleged role in assisting the Liberation Tigers of Tamil Eelam ("LTTE") by attempting to purchase surface-to-air missiles and AK-47s from an undercover officer posing as a black market arms dealer. The Authority to Proceed issued by the Minister of Justice identified the corresponding Canadian criminal offences as participating in the activity of a terrorist group, contrary to s. 83.18 of the Criminal Code, conspiracy to traffic in weapons and attempting to traffic in weapons. The extradition judge committed N for extradition, and the Minister of Justice ordered his surrender. N appealed the committal order and applied for judicial review of the surrender order. He argued, as he had before the extradition judge, that the definition of "terrorist activity" in s. 83.01(1)(b) of the Code and its operation throughout the terrorism provisions in Part II.1 of the Code violated his right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms and that the offence-creating provisions in Part II.1, and in particular s. 83.18, were unconstitutionally overbroad and violated s. 7 of the Charter.

Held, the appeal and application should be dismissed.

For the reasons given in R. v. Khawaja, the motive clause in s. 83.01(1)(b)(i)(A) of the Code does not contravene s. 2(b) of the Charter.

Section 83.18 of the Code is not unconstitutionally overbroad. Section 83.18(3) does not expand the actus reus of the offence. All the conduct described in s. 83.18(3) falls within the normal meaning of the words "participates" and "contributes". Section 83.18(4) does not expand the meaning of participation or contribution. It simply allows the court to "consider" the factors identified in the subsection. The mens rea components of s. 83.18, considered in combination, require a specific and high degree of moral culpability. First, the act said to constitute participation in or contribution to any activity of a terrorist group must be done "knowingly". To act "knowingly", a person who does the act said to amount to participating in or contributing to any activity of a terrorist group must know the circumstances that render the entity in question a "terrorist group" and must also know that the thing being participated in or contributed to is "an activity" of that terrorist group. Second, the Crown must prove an ulterior intention. Even if the acts of participation or contribution are done knowingly, they are not captured by s. 83.18 unless they are done with the further and specific intent of improving the ability of a terrorist group to facilitate or carry out a terrorist activity. Those mens rea components serve to significantly narrow the true reach of the offence created by s. 83.18. Section 83.18 does not create inchoate liability. It creates a substantive offence. There is no constitutional principle that declares that acts that are preparatory to some other crime cannot in and of themselves be defined as a substantive crime. In light of the nature of sophisticated terrorist operations and the huge price to be paid if terrorist plots reach fruition, it was reasonably open to Parliament to treat conduct that is preparatory to and in furtherance of the ultimate goal of terrorist groups as sufficiently harmful and dangerous to the community to warrant its criminalization as a substantive offence.

The extradition judge applied the correct test for committal, and the evidence amply supported his conclusion that the test was satisfied.

The Minister's refusal to provide N with a copy of the Cotroni assessment conducted by the Canadian prosecuting authorities did not deprive N of procedural fairness. N was provided with all non-privileged materials that the Minister considered in making his surrender decision. The Minister was not provided with a copy of the requested Cotroni assessment. Both N and the Minister were given a document containing the conclusion of the Canadian prosecuting authorities that [page664] prosecution in Canada would not be equally effective to a prosecution in the United States. The Minister conducted his own independent Cotroni inquiry. In the circumstances, the Minister's refusal to provide N with a copy of the requested Cotroni assessment was reasonable. The Minister balanced the relevant competing considerations in conducting his own Cotroni assessment. His conclusion that N's right to remain in Canada under s. 6 of the Charter would not be unjustifiably breached by his surrender fell within a range of reasonable outcomes.

APPEAL from the committal order of Pattillo J. (2009), 2009 CanLII 9482 (ON SC), 95 O.R. (3d) 514, [2009] O.J. No. 946 (S.C.J.); APPLICATION for judicial review of the surrender order of the Minister of Justice dated November 17, 2009.

Cases referred to R. v. Khawaja (2010), 103 O.R. (3d) 321, [2010] O.J. No. 5471, 2010 ONCA 862, 271 O.A.C. 238, 273 C.C.C. (3d) 415, 82 C.R. (6th) 122, 97 W.C.B. (2d) 97, apld Other cases referred to Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, 240 D.L.R. (4th) 81, 322 N.R. 205, [2005] 2 W.W.R. 605, 199 B.C.A.C. 45, 33 B.C.L.R. (4th) 195, 184 C.C.C. (3d) 449, 21 C.R. (6th) 82, 121 C.R.R. (2d) 1, 61 W.C.B. (2d) 217; Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 3 All E.R. 1140, [1978] 1 W.L.R. 1350, 68 Cr. App. Rep. 128, 143 J.P. 63 (H.L.); R. v. Ahmad, 2009 CanLII 84774 (ON SC), [2009] O.J. No. 6151, 257 C.C.C. (3d) 199 (S.C.J.); R. v. Déry, [2006] 2 S.C.R. 669, [2006] S.C.J. No. 53, 2006 SCC 53, 272 D.L.R. (4th) 385, 354 N.R. 335, J.E. 2006-2239, 213 C.C.C. (3d) 289, 43 C.R. (6th) 94, 71 W.C.B. (2d) 318, EYB 2006-111255; R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, J.E. 94-1938, 50 B.C.A.C. 161, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133, 24 C.R.R. (2d) 189, 25 W.C.B. (2d) 438; R. v. Lindsay (2009), 97 O.R. (3d) 567, [2009] O.J. No. 2700, 2009 ONCA 532, 68 C.R. (6th) 279, 245 C.C.C. (3d) 301, 251 O.A.C. 1, 194 C.R.R. (2d) 1, affg (2004), 2004 CanLII 16094 (ON SC), 70 O.R. (3d) 131, [2004] O.J. No. 845, [2004] O.T.C. 224, 182 C.C.C. (3d) 301, 20 C.R. (6th) 376, 117 C.R.R. (2d) 41, 61 W.C.B. (2d) 64 (S.C.J.); R. v. Malmo-Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116; R. v. Murdock, 2003 CanLII 4306 (ON CA), [2003] O.J. No. 2470, 173 O.A.C. 171, 176 C.C.C. (3d) 232, 11 C.R. (6th) 43, 107 C.R.R. (2d) 152, 58 W.C.B. (2d) 114 (C.A.); United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 219 O.A.C. 369, 218 C.C.C. (3d) 225, 153 C.R.R. (2d) 20, 74 W.C.B. (2d) 353 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 159]; United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, 96 N.R. 321, J.E. 89-920, 23 Q.A.C. 182, 48 C.C.C. (3d) 193, 42 C.R.R. 101, 7 W.C.B. (2d) 301; United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, 69 W.C.B. (2d) 711, EYB 2006-107828; United States of America v. Lake, [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, EYB 2008-132986, J.E. 2008-970, 230 C.C.C. (3d) 449, 373 N.R. 339, 292 D.L.R. (4th) 193, 236 O.A.C. 371, 56 C.R. (6th) 336, 171 C.R.R. (2d) 280, 72 Admin. L.R. (4th) 30, affg 2006 CanLII 29924 (ON CA), [2006] O.J. No. 3485, 212 C.C.C. (3d) 51, 145 C.R.R. (2d) 156, 71 W.C.B. (2d) 725 (C.A.); United States of America v. Nadarajah (No. 2) (2010), 109 O.R. (3d) 680, [2010] O.J. No. 5474, 2010 ONCA 857, 223 C.R.R. (2d) 339, 275 O.A.C. 121, 266 C.C.C. (3d) 435; United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 219 O.A.C. 322, 68 Admin. L.R. (4th) 247, 216 C.C.C. (3d) 97, 72 W.C.B. (2d) 451 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 179]; Whitley v. United States of America, 1996 CanLII 225 (SCC), [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25, 132 D.L.R. (4th) 575, 197 N.R. 169, 104 C.C.C. (3d) 447, 30 W.C.B. (2d) 206, affg (1994), 1994 CanLII 498 (ON CA), 20 O.R. (3d) 794, [1994] O.J. No. 2478, 119 D.L.R. (4th) 693, 75 O.A.C. 100, 94 C.C.C. (3d) 99, 25 W.C.B. (2d) 189 (C.A.) [page665] Statutes referred to Canadian Charter of Rights and Freedoms, ss. 2(b), (d), 6, 7 Criminal Code, R.S.C. 1985, c. C-46, Part II.1 [as am.], ss. 83.01, (1)(a), (b), (i)(A), 83.05 [as am.], 83.18, (2), (a), (b), (c), (4), 99(1), 465(3) Extradition Act, S.C. 1999, c. 18, ss. 15, 29(1)(a), 33, 44(1) (a) Treaties and conventions referred to Treaty on Extradition between the Government of Canada and the Government of the United States of America, December 3, 1971, Can. T.S. 1976 No. 3, art. 10(2)

Breese Davies and Erin Dann, for appellant/applicant. Nancy Dennison and Sean Gaudet, for respondents.

BY THE COURT: --

I. Background

[1] Piratheepan Nadarajah is wanted in the United States to stand trial on terrorism charges for his alleged role in assisting the Liberation Tigers of Tamil Eelam (the "LTTE"). It is alleged that in August 2006, Nadarajah, together with three others, attempted to purchase surface-to-air-missiles and AK- 47s on behalf of the LTTE from an undercover law enforcement officer who was posing as a black market arms dealer in Long Island, New York.

[2] On November 20, 2006, the Minister of Justice issued an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the "Act") to seek a committal order against Nadarajah. The Authority to Proceed identified the following Canadian criminal offences as corresponding to the alleged criminal conduct for which Nadarajah's committal into custody for extradition to the United States is sought: (1) participating in the activity of a terrorist group, contrary to s. 83.18 of the Criminal Code, R.S.C. 1985, c. C-46; (2) conspiracy to traffic in weapons, contrary to ss. 465(3) and 99(1) of the Criminal Code; and (3) attempt to traffic in weapons, contrary to s. 99(1) of the Criminal Code.

[3] By order of Pattillo J. of the Superior Court of Justice dated March 5, 2008, Nadarajah was committed into custody for extradition. On November 17, 2009, the Minister of Justice ordered his surrender to the United States. Nadarajah appeals [page666] against the committal order and also applies for judicial review of the Minister's surrender order.

[4] Nadarajah's extradition hearing was held together with that of Suresh Sriskandarajah, who is also wanted in the United States to stand trial for unrelated alleged terrorism offences in respect of the LTTE. The proceedings against Sriskandarajah also led to a committal order by the extradition judge and, eventually, a surrender order by the Minister. Like Nadarajah, Sriskandarajah appealed from his committal order and sought judicial review of the Minister's surrender decision. This court heard his appeal and judicial review application together with those of Nadarajah. Our reasons for decision in Sriskandarajah's proceedings [United States of America v. Nadarajah (No. 2) (2010), 2010 ONCA 857, 109 O.R. (3d) 680, ("Sriskandarajah")] are being released concurrently with these reasons.

II. Issues

[5] At their extradition hearings, Nadarajah and Sriskandarajah raised several Canadian Charter of Rights and Freedoms arguments. They argued that the statutory definition of "terrorist activity" found in s. 83.01(1)(b) [of the Criminal Code], and its operation throughout the terrorism provisions in Part II.1 of the Criminal Code, violated their right to freedom of expression (s. 2(b) of the Charter) and freedom of association (s. 2(d)). They also argued that the offence-creating provisions in Part II.1 and, in particular, s. 83.18, were unconstitutionally vague and overbroad and, therefore, violated their rights under s. 7 of the Charter. On appeal, they have narrowed their Charter arguments. They no longer contend that s. 83.01(1)(b) violates s. 2(d), and they no longer argue that the offence-creating provisions are unconstitutionally vague. They do, however, maintain their arguments based on s. 2(b) and overbreadth.

[6] In addition to the constitutional arguments, Nadarajah raises two additional grounds of appeal, one relating to the committal order and the other by way of judicial review attacking the Minister's surrender decision. Nadarajah submits that the extradition judge erred by ruling that the test for committal set out in s. 29(1)(a) of the Act was satisfied. On the judicial review application, he submits that the Minister's surrender decision is tainted by procedural unfairness and that the decision to surrender is an unreasonable one.

[7] We reject these arguments. For the following reasons, we conclude that Nadarajah's appeal and judicial review application must be dismissed. [page667]

III. Discussion

(1) Constitutional arguments

(a) The s. 2(b) arguments

[8] We have addressed the s. 2(b) arguments raised on this appeal and that of Sriskandarajah in our reasons in R. v. Khawaja [(2010), 2010 ONCA 862, 103 O.R. (3d) 321, [2010] O.J. No. 5471 (C.A.)], released concurrently. For those reasons, we would not give effect to the submission that the motive clause in s. 83.01(1)(b)(i)(A) contravenes s. 2(b) of the Charter.

(b) The s. 7 challenge

[9] By order of the extradition judge, Nadarajah was committed for surrender to the United States on the offences set out in the Minister's Authority to Proceed issued under s. 15 of the Act. As indicated above, those offences included participating in the activity of a terrorist group, contrary to s. 83.18. [See Note 1 below]

[10] If, as counsel for Nadarajah submits, s. 83.18 is unconstitutionally overbroad, the provision is of no force and effect, and the extradition judge's committal order cannot stand. Without the committal order, the surrender order would fall.

[11] Counsel for Nadarajah, in her helpful submissions, contends that the wide meaning given to the words "participating" and "contributing" in s. 83.18, combined with the very broad definition of "terrorist activity" in s. 83.01(1)(b), which reaches inchoate conduct such as conspiracies and attempts, results in the potential imposition of criminal liability for conduct that is very far removed from any substantive offence. Counsel argues that a provision that imposes criminal liability for conduct that has not reached the point at which liability could attach for an inchoate crime, such as conspiracy or attempt, necessarily overshoots any legitimate legislative purpose and is therefore unconstitutionally overbroad. She supports this submission by reference to cases that have refused to impose criminal liability for double-barrelled inchoate offences such as attempting to conspire: see R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, [2006] S.C.J. No. 53, at paras. 47-50.

[12] The extradition judge rejected this submission, at para. 20:

When the words of the impugned provisions are read in their entire context, I do not think that the means chosen by Parliament are too sweeping having [page668] regard to the objective of the legislation which is the prosecution and prevention of terrorist offences. (Citations omitted)

[13] An understanding of the overbreadth argument requires an appreciation of the interaction of s. 83.18 and parts of the definition provisions found in s. 83.01. None of the legislation makes for easy reading. Section 83.18 and the relevant parts of the definitions are set out below:

83.18(1) 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.

(2) An offence may be committed under subsection (1) whether or not (a) a terrorist group actually facilitates or carries out a terrorist activity; (b) the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or (c) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

(3) Participating in or contributing to an activity of a terrorist group includes (a) providing, receiving or recruiting a person to receive training; (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group; (c) recruiting a person in order to facilitate or commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence; (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and (e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.

(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused (a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group; [page669] (b) frequently associates with any of the persons who constitute the terrorist group; (c) receives any benefit from the terrorist group; or (d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group. . . . . .

83.01(1) The following definitions apply in this Part. . . . . .

"entity" means a person, group, trust, partnership or fund or an unincorporated association or organization. . . . . .

"terrorist activity" means [See Note 2 below] . . . . . (b) an act or omission, in or outside Canada, (i) that is committed (A) in whole or in part for a political, religious or ideological purpose, objective or cause, and (B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and (ii) that intentionally (A) causes death or serious bodily harm to a person by the use of violence, (B) endangers a person's life, (C) causes a serious risk to the health or safety of the public or any segment of the public, (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or [page670] (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.

"terrorist group" means (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (b) a listed entity, [See Note 3 below]

and includes an association of such entities.

[14] The principles to be applied in determining whether a criminal prohibition is unconstitutionally overbroad are settled and have been carefully applied to this very legislation by Dawson J. in R. v. Ahmad, 2009 CanLII 84774 (ON SC), [2009] O.J. No. 6151, 257 C.C.C. (3d) 199 (S.C.J.), at paras. 37-87. Those principles are not in dispute in this appeal and can be described in summary form.

[15] The overbreadth inquiry asks whether the scope of a criminal prohibition created by Parliament goes beyond that which is necessary to accomplish the parliamentary objective underlying the creation of the criminal prohibition. If the reach of the prohibition goes beyond the objective, the limitation on liberty inherent in the imposition of a criminal sanction cannot be justified and is contrary to the principles of fundamental justice: R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at pp. 792-93 S.C.R.; R. v. Lindsay (2004), 2004 CanLII 16094 (ON SC), 70 O.R. (3d) 131, [2004] O.J. No. 845, 182 C.C.C. (3d) 301 (S.C.J.), at para. 37, affd (2009), 2009 ONCA 532, 97 O.R. (3d) 567, [2009] O.J. No. 2700, 245 C.C.C. (3d) 301 (C.A.).

[16] In assessing whether the means chosen by Parliament overshoots the legislative purpose of the prohibition, the courts will afford a substantial measure of deference to Parliament's [page671] assessment of the means needed. Such deference requires that the means used by Parliament be "grossly disproportionate" to the state objective underlying the criminal prohibition before the law will be said to be unconstitutionally overbroad: R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, at para. 159; Lindsay, at para. 21 (C.A.); Ahmad, at para. 39.

[17] The overbreadth inquiry proceeds through three stages. First, the impugned provision must be interpreted to determine the scope of the criminal prohibition created by the statutory provision. Second, the legislative purpose animating the impugned provision must be determined. Finally, the court must determine whether the scope of the impugned provision is "grossly disproportionate" to the state objective underlying the provision.

(i) The scope of s. 83.18

[18] The actus reus of the offence created by s. 83.18 consists of directly or indirectly participating in or contributing to the activities of a terrorist group. Section 83.18(3) provides a non-exhaustive list of the activities that can constitute "participating" or "contributing". We do not think that s. 83.18(3) expands the actus reus of the offence. All the conduct described in s. 83.18(3) falls within the normal meaning of the words "participates" and "contributes".

[19] Section 83.18(4) describes certain factors in relation to an accused's conduct that can constitute evidence of participating in or contributing to the activity of a terrorist group. Section 83.18(4) does not expand the meaning of participation or contribution. It simply allows the court to "consider" the factors identified in the subsection. The extent to which these factors assist in proving participation or contribution will depend on the circumstances. Section 83.18(4) does not add anything to the generally applicable rules of evidence.

[20] To understand the phrase, "any activity of a terrorist group", in s. 83.18 requires reference to three of the definitions found in s. 83.01 and set out above. A terrorist group includes an entity that has as one of its purposes or activities the facilitation or carrying out of terrorist activity, itself a defined term. All activities of a terrorist group are not, however, necessarily terrorist activities within the meaning of the definition of that phrase. The word "entity" is broadly defined and even includes a single person. Thus, an activity of a terrorist group in s. 83.18 can include a non- terrorist activity engaged in by an entity that falls within the definition of a terrorist group. [page672]

[21] The combined effect of the definitions set out above significantly expands the actus reus of the offence created by s. 83.18. This is particularly so given that the definition of terrorist activity includes a conspiracy, attempt, threat to commit, counselling or being an accessory after the fact to any of the acts or omissions caught by the definition of terrorist activity. Thus, the activity of a terrorist group may include a failed and futile attempt to do something that would have constituted terrorist activity under the definition. An individual who did anything that directly or indirectly contributed to that failed and futile attempt would have committed the actus reus of the offence described in s. 83.18.

[22] The ambit of the crime created by s. 83.18 is not defined exclusively by its actus reus. The mens rea must also be considered. The mens rea is twofold. First, the act said to constitute participation in or contribution to any activity of a terrorist group must be done "knowingly". The term "knowingly" establishes a high level of mens rea. To act "knowingly", a person who does the act said to amount to participating in or contributing to any activity of a terrorist group must know the circumstances that render the entity in question a "terrorist group". The person must also know that the thing being participated in or contributed to is "an activity" of that terrorist group. Thus, if the entity is said to be a terrorist group because it has engaged in terrorist activity as defined in s. 83.01, a person must know the nature of the activity engaged in by the entity he or she is participating in or contributing to before that person's actions can attract liability under s. 83.18.

[23] In addition to the requirement that the acts of participation or contribution must be done knowingly, the reach of s. 83.18 is further restricted by the requirement that the Crown prove an ulterior intention. The acts that amount to participation in or contribution to the activity of a terrorist group must be done for the specific purpose "of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity". Even if the acts of participation or contribution are done knowingly, they are not captured by s. 83.18 unless they are done with the further and specific intent of improving the ability of a terrorist group to facilitate or carry out a terrorist activity.

[24] We think it is significant that the ulterior intention requirement speaks of terrorist activity and not the activity of a terrorist group. Not all activities of a terrorist group are terrorist activities as defined in s. 83.01. The ulterior intention requirement is met only if the individual's expressed purpose is to [page673] enhance the group's ability to carry out acts that are within the definition of terrorist activity. An accused, of course, need not know the definition of terrorist activity in s. 83.01. The accused must, however, have knowledge of the facts that bring the activity to be facilitated or carried out within that definition.

[25] Nothing in s. 83.18(2) dilutes the strong and specific mens rea requirement. Section 83.18(2)(a) and (b) declare that liability will attach even if the prohibited purpose is not achieved. The same result would follow if s. 83.18(2) were not in the section. Where a crime is defined to include an ulterior purpose, the Crown is not required to prove that the purpose was actually achieved. That is why the intention is described as an "ulterior" intention.

[26] Section 83.18(2)(c) directs that the accused need not know "the specific nature of any terrorist activity that may be facilitated or carried out". Once again, there is nothing unusual about this provision. Even without subsection (2)(c), on the application of generally applicable criminal law principles, knowledge that the activity was of a kind that came within the definition of the phrase "terrorist activity" would satisfy the mens rea requirement without proof of specific knowledge of the exact nature of the terrorist activity: see Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 3 All E.R. 1140, [1978] 1 W.L.R. 1350 (H.L.).

[27] The two mens rea components considered in combination require a specific and high degree of moral culpability. In our view, the mens rea components serve to significantly narrow the true reach of the offence created by s. 83.18.

[28] Putting the actus reus and mens rea together, s. 83.18 applies to persons who, by their acts, contribute to or participate in what they know to be activities of what they know to be a terrorist group. In addition, those acts must be done for the specific purpose of enhancing the ability of that terrorist group to facilitate or carry out activity that falls within the definition of terrorist activity.

(ii) The objective of s. 83.18

[29] Section 83.18 is part of the anti-terrorism legislation that was introduced in October of 2001. As explained in Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, at para. 40, that legislative package was intended to further the prevention of terrorism and the prosecution of terrorism-related offences. In Ahmad, at paras. 50-61, Dawson J. examined at some length the relevant legislative history, extrinsic material such as Hansard, and the international [page674] context in which the anti-terrorism provisions, including Part II.1 of the Criminal Code, were proclaimed in 2001. We will not repeat the several references cited by Dawson J. to the testimony of the Minister of Justice and other senior federal civil servants explaining the purpose of the legislation and the importance placed on preventative measures by those who fashioned the legislation. We adopt Dawson J.'s conclusions, at paras. 60-61, with respect to the objective of the legislation, including the objective of s. 83.18:

The legislative history just reviewed demonstrates the importance of the preventive objective of the legislation. That objective reflects the difficulty of deterring and prosecuting those involved in terrorist activity by relying on traditional criminal law approaches. It is an objective that supports Parliament's determination that there is substantive harm inherent in all aspects of preparation for a terrorist act because of the great harm that flows from the completion of terrorist acts.

It is this preventive objective that explains why Parliament took such an expansive approach to defining the scope of liability[.] (Emphasis added)

(iii) Is the scope of s. 83.18 grossly disproportionate to the legislative objective?

[30] Counsel for the appellant describes s. 83.18 as imposing criminal liability for inchoate conduct that occurs at some point on the continuum of conduct that ultimately culminates in a substantive offence. She submits that the conduct criminalized by s. 83.18 may fall at a place on the continuum that is even before the point where the crimes of conspiracy and attempt are committed. She argues that s. 7 of the Charter, and in particular the overbreadth doctrine, prohibits the imposition of criminal liability at a point on the conduct continuum that is this far removed from the commission of any substantive offence.

[31] There is no doubt that the offences proscribed by s. 83.18 may well be preliminary to much more serious and deadly conduct. However, we think counsel's description of s. 83.18 as creating inchoate liability is a mischaracterization. Section 83.18 creates a substantive offence. It requires proof of conduct, participation in or contribution to the activity of a terrorist group that goes beyond inchoate liability, such as conspiracy or counselling. Nor is liability imposed for anything short of the completion of the actus reus with the requisite mens rea. Section 83.18 is by any measure a substantive offence.

[32] There is no constitutional principle that declares that acts that are preparatory to some other crime cannot in and of themselves be defined as a substantive crime: [page675] R. v. Murdock, 2003 CanLII 4306 (ON CA), [2003] O.J. No. 2470, 176 C.C.C. (3d) 232 (C.A.), at para. 38. There is no single bright line along the continuum of conduct between that which can constitutionally be declared criminal and that which cannot. If Parliament chooses to criminalize conduct that is preliminary to some further criminal conduct, overbreadth and vagueness may become concerns. Parliament's power to constitutionally criminalize preparatory acts as substantive offences is confined by the principles of overbreadth and vagueness.

[33] We have no difficulty concluding that when the actus reus and mens rea are properly described, s. 83.18 prohibits actions that clearly pose a significant danger to the community. This is particularly so when one bears in mind that s. 83.18 does not criminalize mere participation in or contribution to activities of a terrorist group, but criminalizes only that participation or contribution which is done for the specific purpose of improving the terrorist group's ability to facilitate or carry out terrorist activity as defined in s. 83.01. Conduct that falls within the prohibition of s. 83.18 is both inherently dangerous and potentially preparatory to other very dangerous acts.

[34] As discussed by Dawson J. in Ahmad, at paras. 54-61, prior to passage of the anti-terrorism legislation, Parliament had ample evidence before it indicating that sophisticated terrorist operations depended on the existence and functioning of discrete units, each of which engaged in various acts intended to facilitate and culminate in the kind of mass murder that has become all too commonplace. In light of the nature of sophisticated terrorist operations and the huge price to be paid if terrorist plots reach fruition, it was reasonably open to Parliament to treat conduct that is preparatory to and in furtherance of the ultimate goal of terrorist groups as sufficiently harmful and dangerous to the community to warrant its criminalization as a substantive offence.

[35] The scope of s. 83.18 is entirely consistent with the preventative thrust of the anti-terrorism legislation. The appellant has failed to demonstrate that the criminal prohibition in s. 83.18 imposes limits on individual liberty that go beyond those needed to achieve the purpose of the legislation. The s. 7 claim in this appeal and in Sriskandarajah fails.

(2) The test for committal was satisfied

[36] The test for committal, set out under s. 29(1)(a) of the Act, requires the extradition judge to order the committal of a person sought for prosecution to await surrender if:

29(1)(a) . . . there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on [page676] the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner[.]

[37] The extradition judge recognized the governing test for committal and reviewed the recent authorities in which the test has been described: see United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33; United States of America v. Thomlison (2007), 2007 ONCA 42, 84 O.R. (3d) 161, [2007] O.J. No. 246 (C.A.), leave to appeal refused [2007] S.C.C.A. No. 179; United States of America v. Anderson (2007), 2007 ONCA 84, 85 O.R. (3d) 380, [2007] O.J. No. 449 (C.A.), leave to appeal refused [2007] S.C.C.A. No. 159. There is no suggestion that the extradition judge misapprehended or failed to apply this test.

[38] The extradition judge conducted a detailed review of the evidence before him concerning the LTTE and Nadarajah's alleged conduct regarding the LTTE. This evidence was contained in original and supplemental records of the case certified as being available for trial and sufficient under the laws of the United States to justify prosecution against Nadarajah by the responsible prosecuting authority in New York State in accordance with s. 33 of the Act and art. 10(2) of the Treaty on Extradition between the Government of Canada and the Government of the United States of America, December 3, 1971, Can. T.S. 1976 No. 3, as amended by January 11, 1988, Can. T.S. 1991 No. 37 (the "Treaty").

[39] The evidence against Nadarajah included the following: (1) on or about August 14, 2006, one of Nadarajah's three alleged co-conspirators -- Sathajham Sarachandran -- described Nadarajah to an undercover police officer as the "technical" expert of the group who sought to purchase the surface-to-air missiles and AK-47s; (2) on August 15, 2006, Sarachandran again spoke with the undercover police officer and arranged to meet with him in New York on August 19, 2006, indicating that he intended to bring three of his associates to the meeting; (3) on August 18, 2006, Nadarajah attempted, together with Sarachandran and two other alleged co-conspirators, to enter the United States by driving across the Canada/New York border. Nadarajah was turned back by the United States Border Customs authorities because of a prior border incident. However, his three associates were permitted entry to the United States and proceeded to New York; [page677] (4) the next day, on August 19, 2006, Nadarajah's three alleged co-conspirators attended a meeting with undercover police officers, during which they sought to complete the desired missile and weapons purchase. During this meeting, they described Nadarajah as the "scientist" and technical expert in their group. They also stated that he was supposed to be at the meeting with them but had been denied entry at the border. All three men were arrested shortly after the meeting; and (5) Blackberry devices belonging to Nadarajah and one of his alleged co-conspirators revealed numerous communications or attempted communications between them, both before and after the key August 19, 2006 meeting. In one of these communications, Nadarajah stated "I am home. Good luck".

[40] The evidence regarding the LTTE indicated that (1) the LTTE has, as one of its purposes, the carrying out of terrorist activities, including intentionally causing death or serious bodily injury to people for political or ideological purposes with the intention, among other things, of intimidating the government of Sri Lanka to recognize an independent Tamil state in Sri Lanka; and (2) an unnamed expert in foreign terrorist organizations, including the LTTE, was expected to testify at Nadarajah's proposed trial in the United States concerning the background, structure, leadership, methods of operation and activities of the LTTE.

[41] Based on the contents of the original and supplemental records of the case, the extradition judge concluded that there was evidence before him which, if accepted by a properly instructed jury, would establish that (1) the LTTE is a terrorist group; (2) in or around July and August 2006, Nadarajah and his alleged co-conspirators participated in or contributed to the activity of the LTTE by attempting to purchase surface-to-air missiles and AK-47s in the United States for use by the LTTE; (3) Nadarajah knew of the existence of the LTTE and his participation in the attempted purchase was intended by him to enhance the ability of the LTTE to carry out a terrorist activity. The extradition judge further held that there was some evidence in respect of each of the essential elements of the weapons-related offences alleged against Nadarajah. [page678]

[42] Accordingly, as Nadarajah had conceded that he was the person named in the request for extradition by the United States, the extradition judge concluded that the test for committal was satisfied. He therefore granted the requested committal order in respect of the three Canadian offences listed in the Authority to Proceed.

[43] We see no basis on which to interfere with the extradition judge's committal ruling.

[44] The extradition judge, as he was required to do, assessed all the evidence of Nadarajah's alleged conduct, as outlined in the records of the case, to determine whether it supported the existence of each element of the Canadian criminal offences alleged. In so doing, the extradition judge properly identified the constituent elements of the offences alleged and assessed the evidence in light of those elements. In our view, the evidence, including the evidence described in paras. 39 and 40 of these reasons, amply supported the extradition judge's conclusion that the test for committal was satisfied in respect of each of the essential elements of the Canadian offences alleged against Nadarajah.

[45] This ground of appeal therefore fails.

(3) Attack on surrender decision

[46] Nadarajah's attack on the Minister's surrender decision is also unsustainable.

[47] Nadarajah contends that the Minister's refusal to provide him with a copy of the assessment of the feasibility of prosecution in Canada conducted by the Canadian prosecuting authorities pursuant to United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56 denied him procedural fairness. He asserts further that this court's treatment of Cotroni assessments is "unduly restrictive". Finally, he argues that the Minister's determination that extradition does not unjustifiably infringe his s. 6 Charter rights was unreasonable. We would not give effect to these arguments.

[48] Procedural fairness and fundamental justice at the surrender stage of the extradition process require that (1) the person whose extradition is sought know the case against him or her; (2) the Minister provide the person sought with a reasonable opportunity to adequately state his or her case against surrender; (3) the Minister give due consideration to all relevant factors in deciding whether to order surrender; and (4) the Minister give sufficient reasons for the decision to surrender: Whitley v. United States of America (1994), 1994 CanLII 498 (ON CA), 20 O.R. (3d) 794, [1994] O.J. No. 2478 (C.A.), affd 1996 CanLII 225 (SCC), [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25; [page679] United States of America v. Lake, 2006 CanLII 29924 (ON CA), [2006] O.J. No. 3485, 212 C.C.C. (3d) 51 (C.A.), affd 2008 SCC 23, [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23.

[49] These requirements were met in this case. In particular, with respect to the Minister's refusal to provide Nadarajah with a copy of the Cotroni assessment conducted by Canadian prosecuting authorities, the Minister's reasons for surrender reveal that (1) Nadarajah was provided with all non-privileged materials that the Minister considered in making his surrender decision; (2) the Minister had not been provided with a copy of the requested Cotroni assessment; (3) Nadarajah, like the Minister himself, was furnished with the document containing the conclusion of the Canadian prosecuting authorities that prosecution in Canada would not be "equally effective" to a prosecution in the United States; and (4) the Minister conducted his own independent Cotroni inquiry, bearing in mind all the materials before him (including Nadarajah's submissions), the results of which are set out in the Minister's reasons. In all these circumstances, the Minister's refusal to provide Nadarajah with a copy of the requested Cotroni assessment was not unreasonable and the Minister's limited disclosure obligations were satisfied.

[50] Nor do we accept Nadarajah's complaint that the Minister failed to properly assess and give appropriate weight to all relevant factors in deciding whether to order surrender. In his reasons, having considered the applicable Cotroni factors, the Minister stated:

The important principle of international law that a state should extradite unless it can prosecute the offence itself must be considered in determining whether extradition would violate Mr. Nadarajah's section 6(1) Charter rights. In the circumstances of this case, insofar as the investigation was initiated and developed by the American authorities, all of the co-accused have been charged there, and most of the witnesses are located there, it would not, in my view, be an unjustifiable breach of Mr. Nadarajah's section 6 Charter rights to surrender him to face prosecution in the United States. Nor am I persuaded that this is a case where surrender would be either unjust or oppressive under paragraph 44(1)(a) of the Act or would otherwise warrant a refusal of surrender under the Treaty.

[51] This decision, which reflects a balancing by the Minister of the relevant competing considerations regarding surrender, was open to the Minister on the evidence in this case. It follows that the Minister's assessment of Nadarajah's s. 6 Charter right to remain in Canada, in the context of s. 44(1)(a) of the Act, fell within a range of reasonable outcomes and interference by this court with the Minister's surrender order is precluded. [page680]

IV. Disposition

[52] For the reasons given, both the appeal and judicial review application are dismissed.

Appeal and application dismissed.

Notes

Note 1: The appellant Sriskandarajah was also ordered committed for surrender on the offence set out in s. 83.18, as well as other terrorist offences.

Note 2: The definition of "terrorist activity" also includes an act or omission committed in Canada that constitutes one of the offences referred to in s. 83.01(1)(a). As none of these offences are relevant to the appeals before us, we have not reproduced s. 83.01(1)(a).

Note 3: "Listed entity" means an entity on a list established by regulation of the Governor-in-Council under s. 83.05 of the Criminal Code.