@B,00022907,OR

@1@Z20101217

@2

Her Majesty the Queen v. Khawaja

[Indexed as: R. v. Khawaja]

@3

103 O.R. (3d) 321

2010 ONCA 862

@4

Court of Appeal for Ontario,

Doherty, Moldaver and Cronk JJ.A.

December 17, 2010

@6

Charter of Rights and Freedoms -- Freedom of expression --

Trial judge correctly finding that definition of "terrorist

activity" in s. 83.01(1)(b) of Criminal Code not violating s.

2(b) of Charter -- None of activity that falls within

definition of "terrorist activity" protected by s. 2(b) as

either being expressed through violence (which is not protected

by s. 2(b)) or espousing actions which would undermine

principles and values protected by Charter -- Accused arguing

that motive clause in s. 83.01(1)(b)(i) violating s. 2 of

Charter as would indirectly "chill" people not themselves

involved in terrorist activities but sharing opinions or

beliefs similar to persons involved in terrorist activity from

expressing their views -- Trial judge erring in finding that

motive requirement in s. 83.01(1)(b)(i)(A) unjustifiably

infringed s. 2 of Charter based on indirect "chilling effect"

on persons who wished to engage in conduct that was outside

definition of "terrorist activity" based on speculation that

anyone being chilled -- Onus on accused to establish Charter

breach and that cause of alleged "chilling effect" was motive

clause -- Canadian Charter of Rights and Freedoms, s. 2(b)

-- Criminal Code, R.S.C. 1985, c. C-46, s. 83.01(1)(b).

Criminal law -- Evidence -- Judicial notice -- Accused

charged with terrorism offences allegedly committed in

furtherance of Afghan insurgency -- Trial judge not erring in

taking judicial notice of basic facts about political and

military situation in Afghanistan.

Criminal law -- Trial -- Theory of the Crown -- Accused

arguing that Crown impermissibly expanding theory from opening

statement to include acts beyond fertilizer conspiracy in the

United Kingdom causing prejudice to defence -- Defence not

seeking particulars -- Crown theory permitted to evolve as

evidence unfolding during trial -- Crown theory always

including acts beyond proposed terrorist acts in the United

Kingdom to include assisting group elsewhere with their Jihad

-- Appeal from conviction dismissed.

Criminal law -- Sentencing -- Terrorism offences -- Trial

judge erring in imposing sentences totalling 10[cents] years

(in addition to almost five years of pre-trial custody) for

six terrorism-related offences committed by accused who was

dedicated to violent Jihad -- Trial judge erring in treating

absence of evidence of remorse or prospects for reformation as

neutral rather than as aggravating factor -- Accused posing

continuing danger of serious harm to public -- Section 83.26 of

Criminal Code reflecting Parliament's intention that general

principle of totality must be moderated or altered in case of

terrorism-related crimes given nature of offences and clear

Parliamentary intent that sentences for multiple terrorist-

related offences must be consecutive unless imprisonment for

life imposed -- Trial judge failing to impose sentence that

reflected gravity of actions, the unique nature of crimes

involving terrorism and continuing risk posed by accused

-- Life sentence or sentence [page322] exceeding 20 years will

generally be appropriate for terrorist activity that offender

knows is designed to or is likely to result in indiscriminate

killing of innocent persons -- Sentence varied to life

imprisonment -- Accused ordered to serve at least ten years of

sentence before being eligible for parole -- Accused arrested

before plans could be effectuated -- Fact proposed explosive

device needed modification before could cause desired mass loss

of life and damage to property not mitigating factor

-- Criminal Code, R.S.C. 1985, c. C-46, s. 83.26.

Criminal law -- Terrorism offences -- "Armed conflict"

exception -- Accused charged with terrorism offences allegedly

committed in furtherance of Afghan insurgency -- "Armed

conflict" exception to definition of "terrorist activity" not

applying in absence of evidence that accused acted in

accordance with international law or that hostilities

undertaken by insurgents in Afghanistan were undertaken in

compliance with international law -- Ample evidence that

accused's making no distinction between soldiers and other

lawful combatants and innocent civilians as appropriate targets

for violence.

The accused became involved with a terrorist group that was

advancing a fertilizer bomb plot in the United Kingdom. The

trial judge found that the Crown had failed to prove that the

accused had actual knowledge of that plot, but that he was

involved in the development of a remote trigger and that he

promised to build 30 such triggers. The accused also took

weapons training at a camp in Pakistan, provided financial

support and technical training, and transported supplies for

the group. The accused was convicted of offences under ss.

81(1)(a) (count 1); 83.03(a) (count 5); 83.18(1) (counts 3 and

6); 83(19) (count 7); and 83.21(1) (count 4) of the Criminal

Code. In addition to slightly less than five years of pre-trial

custody, the accused was sentenced to four years' imprisonment

on count 1; two years consecutive on each of counts 3, 4 and 5;

and three months consecutive on each of counts 6 and 7, for a

total of 10[cents] years' imprisonment. The accused appealed

the conviction and the sentence, and the Crown cross-appealed

the sentence.

Held, the conviction and sentence appeals should be

dismissed; the cross-appeal should be allowed.

The definition of "terrorist activity" in s. 83.01(1)(b) of

the Code does not violate s. 2(b) of the Canadian Charter of

Rights and Freedoms. None of the activity that falls within the

definition of "terrorist activity" is protected under s. 2(b).

Some, if not all, of the conduct involves the use of violence

to convey a meaning and advocating or carrying out violent acts

are not protected expression under the Charter. To the extent

that such activity does not involve conveying a meaning through

violence, it involves the conveying of meaning in a manner that

is contrary to, and destructive of, the principles underlying

the right to freedom of expression. As the purpose of the

legislation is not to limit expression, the fact that it has

that effect, but only with respect to a form of expression that

is destructive of the principles underlying freedom of

expression, does not constitute an infringement of s. 2(b) of

the Charter.

The trial judge erred in finding that the motive requirement

in s. 83.01(1)(b)(i)(A) unjustifiably infringes s. 2 of the

Charter based on an indirect "chilling effect" on persons who

wish to engage in conduct that is outside the definition of

"terrorist activity" and in severing the motive clause from

the definition of "terrorist activity". Even assuming that an

indirect effect of a statutory provision can render that

provision unconstitutional, the accused led no evidence to

support the [page323] contention that these indirectly affected

individuals felt constrained in the expression of their beliefs

or opinions by any part of the terrorism-related provisions,

let alone that the cause of any alleged "chill" was the motive

clause. The trial judge's decision was based on speculation and

judicial notice, although the judge did not acknowledge that he

had relied on judicial notice. The onus was on the accused to

establish a breach of the Charter and, as the terrorist

provisions have been in the Criminal Code for almost ten years,

it should have been possible to present evidence of the alleged

chilling effect if it existed. This was not a matter of which

the trial judge was entitled to take judicial notice. However,

the trial judge's error was of no moment because he found that,

even if the motive requirement was an essential element of the

offences, the Crown would have proved it was established based

on the evidence adduced against the accused.

The "armed conflict" exception to the definition of terrorist

activity set out in s. 83.01(1)(b)(ii) of the Code was not

available to the accused in the absence of any evidence that

the accused acted in accordance with international law or that

the hostilities by the insurgents in Afghanistan were

undertaken in compliance with international law. Moreover, the

accused's claim that his actions were directed solely at

supporting the insurgency in Afghanistan was contradicted by

the trial judge's unchallenged factual findings.

The trial judge did not err in taking judicial notice of

basic facts about the political and military situation in

Afghanistan based on sources such as United Nations Security

Council resolutions. The skeletal facts which the trial judge

relied upon are beyond dispute and he used a conservative

approach about the facts he adopted.

The sentence imposed by the trial judge was unfit. He erred

in assessing the accused's level of determination. The record

indicated that the accused was committed to violent Jihad and

was willing to do anything and go anywhere to promote it. The

trial judge erred in treating the absence of any evidence of

the accused's remorse or rehabilitative prospects as a neutral

rather than as an aggravating factor. The accused had shown a

willingness to participate in indiscriminate killing and there

are good grounds for believing that he remains a serious danger

for an indeterminate time. The method of dealing with such

offenders is to segregate them from society for an

indeterminate period. Finally, the trial judge erred in

interpreting s. 83.26 of the Code, which explicitly indicates

that sentences for listed offences should be made consecutive

to each other, unless a life sentence was imposed. A life

sentence or a sentence exceeding 20 years will generally be

appropriate for terrorist activity that the offender knows is

designed to or is likely to result in the indiscriminate

killing of innocent persons. In enacting s. 83.26, Parliament

intended to send a message that terrorism is a crime that

warrants special consideration and it is to be treated

differently for sentencing purposes. Section 83.26 reflects

Parliament's intention that the general principle of totality

must be moderated or altered in the case of terrorism-related

crimes. If giving effect to that intention means imposing

sentences of more than 20 years in some instances where a life

sentence is either unavailable or unwarranted, trial judges

should not feel constrained from doing so by reason of a 20-

year fixed ceiling custom that has no foundation in

sentencing principles or policy. The sentence in this case

failed to reflect the enormity of the accused's crimes and the

horrific nature of the crime of terrorism itself, it failed to

adequately reflect the continuing danger that the accused

presented to society and it did not adequately deter would-be

terrorists. The sentence on count 1 was varied to life

imprisonment. The other sentences were varied as follows: four

years consecutive on count 3; seven years consecutive on count

4; two years consecutive on count 5; eight years consecutive on

count 6; and three years consecutive on [page324] count 7. The

accused was ordered to serve ten years of his sentence before

being eligible for parole.

@5Cases referred to

R. v. Ahmad, 2009 84774 (ON SC), [2009] O.J. No. 6151, 257 C.C.C. (3d) 199

(S.C.J.); R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996]

S.C.J. No. 28, 1996 230 (SCC), 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105

C.C.C. (3d) 327, 1996 230 (SCC), 46 C.R. (4th) 269, 30 W.C.B. (2d) 200, consd

R. v. Motto, [2005] O.J. No. 268, 2005 2051, 63 W.C.B.

(2d) 333 (S.C.J.); R. v. Pendleton, [1982] O.J. No. 132, 1

C.C.C. (3d) 228, 1982 3875 (ON CA), 18 M.V.R. 78 (C.A.); R. v. Wynnychuk, [1962]

A.J. No. 33, 1962 548 (AB SCAD), 37 W.W.R. 381, 132 C.C.C. 227, 37 C.R. 216

(C.A.), distd

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, 2004 SCC 42, 322 N.R. 205, [2005] 2 W.W.R. 605, 199 B.C.A.C.

45, 2004 SCC 42, 33 B.C.L.R. (4th) 195, 184 C.C.C. (3d) 449, 21 C.R. (6th)

82, 2004 SCC 42, 121 C.R.R. (2d) 1, 61 W.C.B. (2d) 217; Greater Vancouver

Transportation Authority v. Canadian Federation of Students

-- British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, [2009]

S.C.J. No. 31, 2009 SCC 31, 192 C.R.R. (2d) 336, 309 D.L.R.

(4th) 277, 2009 SCC 31, 272 B.C.A.C. 29, [2009] 8 W.W.R. 385, 93

B.C.L.R. (4th) 1, 2009 SCC 31, EYB 2009-161351, J.E. 2009-1320, 389 N.R.

98, 2009 SCC 31, 179 A.C.W.S. (3d) 98; Irwin Toy Ltd. v. Quebec (Attorney

General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 58

D.L.R. (4th) 577, 1989 87 (SCC), 94 N.R. 167, J.E. 89-772, 24 Q.A.C. 2, 25

C.P.R. (3d) 417, 1989 87 (SCC), 39 C.R.R. 193, 15 A.C.W.S. (3d) 121; Little

Sisters Book and Art Emporium v. Canada (Minister of

Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 2000

SCC 69, 2000 SCC 69, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R.

1, 2000 SCC 69, J.E. 2001-49, 145 B.C.A.C. 1, 83 B.C.L.R. (3d) 1, 28

Admin. L.R. (3d) 1, 2000 SCC 69, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209, 79

C.R.R. (2d) 189, 2000 SCC 69, 5 T.T.R. (2d) 161, 101 A.C.W.S. (3d) 732, 48

W.C.B. (2d) 76; Montreal (City) v. 2952-1366 Qu‚bec Inc.,

[2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62,

2005 SCC 62, 258 D.L.R. (4th) 595, 340 N.R. 305, J.E. 2005-2012, 32 Admin.

L.R. (4th) 159, 2005 SCC 62, 201 C.C.C. (3d) 161, 18 C.E.L.R. (3d) 1, 36

C.R. (6th) 78, 2005 SCC 62, 134 C.R.R. (2d) 196, 15 M.P.L.R. (4th) 1, 143

A.C.W.S. (3d) 465, 2005 SCC 62, 67 W.C.B. (2d) 397, EYB 2005-97111; R. v.

Amara, [2010] O.J. No. 181, 2010 ONSC 441; R. v. Barot,

[2007] EWCA Crim. 1119 (C.A. (Crim. Div.)); R. v. Beaudry,

[2007] 1 S.C.R. 190, [2007] S.C.J. No. 5, 2007 SCC 5, 276

D.L.R. (4th) 1, 2007 SCC 5, 356 N.R. 323, J.E. 2007-280, 216 C.C.C. (3d)

353, 2007 SCC 5, 44 C.R. (6th) 57, 43 M.V.R. (5th) 1, 71 W.C.B. (2d) 862,

2007 SCC 5, EYB 2007-112960; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.

295, 1985 69 (SCC), [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81,

1985 69 (SCC), [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161,

1985 69 (SCC), 18 C.C.C. (3d) 385, 85 CLLC ¶14,023 at 12108, 13 C.R.R. 64,

14 W.C.B. 157; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, [2000]

S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R.

204, 2000 SCC 15, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32

C.R. (5th) 1, 2000 SCC 15, 45 W.C.B. (2d) 454; R. v. Cinous, [2002] 2

S.C.R. 3, [2002] S.C.J. No. 28, 2002 SCC 29, 210 D.L.R. (4th)

64, 2002 SCC 29, 285 N.R. 1, J.E. 2002-576, 162 C.C.C. (3d) 129, 49 C.R.

(5th) 209, 2002 SCC 29, 52 W.C.B. (2d) 368; R. v. D. (C.), [2005] 3

S.C.R. 668, [2005] S.C.J. No. 79, 2005 SCC 78, 261 D.L.R.

(4th) 257, 2005 SCC 78, 343 N.R. 1, [2006] 5 W.W.R. 195, J.E. 2006-64,

2005 SCC 78, 54 Alta. L.R. (4th) 67, 376 A.R. 258, 203 C.C.C. (3d) 449, 34

C.R. (6th) 323, 2005 SCC 78, 67 W.C.B. (2d) 867, EYB 2005-98962; R. v.

Drolet, 1990 40 (SCC), [1990] 2 S.C.R. 1107, [1990] S.C.J. No. 101, 138 N.R.

305, 1990 40 (SCC), 55 Q.A.C. 59, 26 M.V.R. (2d) 169, affg [1988] J.Q. no

2283, 1988 1354 (QC CA), [1989] R.J.Q. 295, J.E. 89-355, 20 Q.A.C. 94, 14 M.V.R.

(2d) 50 (C.A.); R. v. Elomar, [2010] NSWSC 10, 264 A.L.R.

759 (Aus. N.S.W.S.C.); R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863,

[2001] S.C.J. No. 34, 2001 SCC 32, 199 D.L.R. (4th) 193,

2001 SCC 32, 269 N.R. 149, J.E. 2001-1099, 146 O.A.C. 236, 154 C.C.C. (3d)

97, 2001 SCC 32, 42 C.R. (5th) 1, 82 C.R.R. (2d) 247, 49 W.C.B. (2d) 595;

R. v. Groot, 1999 672 (SCC), [1999] 3 S.C.R. 664, [1999] S.C.J. No. 64, 144

C.C.C. (3d) 287, 1999 672 (SCC), 44 W.C.B. (2d) 214, affg (1998), 41 O.R.

(3d) 280, 1998 2151 (ON CA), [1998] O.J. No. 3674, 112 O.A.C. 303, 129 C.C.C.

(3d) 293, 1998 2151 (ON CA), 39 W.C.B. (2d) 441 (C.A.); [page325] R. v.

Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 2005 SCC

27, 2005 SCC 27, 253 D.L.R. (4th) 76, 333 N.R. 286, J.E. 2005-988, 211

B.C.A.C. 51, 2005 SCC 27, 196 C.C.C. (3d) 123, 29 C.R. (6th) 17, 65 W.C.B.

(2d) 97; R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, [1995] S.C.J.

No. 63, 1995 110 (SCC), 184 N.R. 165, J.E. 95-1510, 84 O.A.C. 161, 99 C.C.C.

(3d) 193, 1995 110 (SCC), 40 C.R. (4th) 141, 27 W.C.B. (2d) 493, EYB

1995-67434; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, [1990]

S.C.J. No. 131, 1990 24 (SCC), 117 N.R. 1, [1991] 2 W.W.R. 1, J.E. 91-42, 77

Alta. L.R. (2d) 193, 1990 24 (SCC), 114 A.R. 81, 61 C.C.C. (3d) 1, 1 C.R.

(4th) 129, 1990 24 (SCC), 3 C.R.R. (2d) 193, 11 W.C.B. (2d) 352; R. v.

Kerr, [2004] 2 S.C.R. 371, [2004] S.C.J. No. 39, 2004 SCC 44,

2004 SCC 44, 240 D.L.R. (4th) 257, 322 N.R. 91, [2004] 9 W.W.R. 75, J.E.

2004-1327, 2004 SCC 44, 28 Alta. L.R. (4th) 1, 354 A.R. 114, 185 C.C.C.

(3d) 1, 2004 SCC 44, 20 C.R. (6th) 199, 61 W.C.B. (2d) 69; R. v.

Khalid, September 3, 2009, Brampton, Court File No. 2025/07

(Ont. S.C.J.); R. v. Khawaja, 2006 63685 (ON SC), [2006] O.J. No. 4245, 214

C.C.C. (3d) 399, 2006 63685 (ON SC), 42 C.R. (6th) 348, 147 C.R.R. (2d) 281, 71

W.C.B. (2d) 723, 2006 63685 (ON SC), 2006 CarswellOnt 6551 (S.C.J.); R. v.

Khawaja, 2008 92005 (ON SC), [2008] O.J. No. 4244, 238 C.C.C. (3d) 114, 79 W.C.B.

(2d) 888 (S.C.J.); R. v. Khawaja, 2009 100210 (ON SC), [2009] O.J. No. 4279,

2009 100210 (ON SC), 248 C.C.C. (3d) 233 (S.C.J.); R. v. Khyam, [2008] EWCA Crim.

1612, [2008] All E.R. (D.) 312 (C.A.); R. v. Kienapple,

1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d)

351, 1974 14 (SCC), 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v.

Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821, [1979] S.C.J. No. 73, 98 D.L.R.

(3d) 111, 1979 19 (SCC), 27 N.R. 451, 47 C.C.C. (2d) 24, 10 C.R. (3d)

299, 1979 19 (SCC), 12 C.R. (3d) 315, 3 W.C.B. 356; R. v. Lodhi, [2007]

NSWCA 360 (C.A. (Crim. App.)), affg [2006] NSWSC 691 (Aus.

N.S.W.S.C.) [Leave to appeal refused [2008] HCATrans 225]; R.

v. Namouh, [2010] Q.J. No. 1158, 2010 QCCQ 943, 2010EXP-800,

J.E. 2010-444, 74 C.R. (6th) 376 (C.Q. (Crim. & Pen. Div.));

R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481, [2000] O.J. No. 2787,

2000 5762 (ON CA), 188 D.L.R. (4th) 385, 135 O.A.C. 1, 146 C.C.C. (3d) 193, 37

C.R. (5th) 97, 2000 5762 (ON CA), 75 C.R.R. (2d) 233, 47 W.C.B. (2d) 116 (C.A.);

R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, [2010] S.C.J. No. 32,

2010 SCC 32, 2010EXP-2463, J.E. 2010-1375, EYB 2010-177244,

2010 SCC 32, 257 C.C.C. (3d) 296, 290 B.C.A.C. 264, 404 N.R. 198, 321

D.L.R. (4th) 577, 2010 SCC 32, 77 C.R. (6th) 12; R. v. Pincemin, [2004]

S.J. No. 134, 2004 SKCA 33, [2005] 11 W.W.R. 55, 249 Sask. R.

86, 2004 SKCA 33, 21 C.R. (6th) 169, 49 M.V.R. (4th) 45, 61 W.C.B. (2d) 79;

R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No. 3479,

2003 32900 (ON CA), 176 O.A.C. 226, 178 C.C.C. (3d) 375, 14 C.R. (6th) 324, 59

W.C.B. (2d) 21 (C.A.); R. v. Ribic, 2008 ONCA 790, [2008] O.J. No. 4681,

2008 ONCA 790, 63 C.R. (6th) 70, 238 C.C.C. (3d) 225, 242

O.A.C. 299, 181 C.R.R. (2d) 262; R. v. Rose (1998), 40 O.R.

(3d) 576, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166

D.L.R. (4th) 385, 1998 768 (SCC), 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C.

(3d) 449, 1998 768 (SCC), 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B.

(2d) 192; R. v. Sakr (1987), 31 A. Crim. R. 444 (Aus. Ct.

C.A. (Vic.)); R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J.

No. 3, 2001 SCC 2, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6

W.W.R. 1, 2001 SCC 2, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d)

1, 2001 SCC 2, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1,

2001 SCC 2, 48 W.C.B. (2d) 287; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, [2005]

S.C.J. No. 74, 2005 SCC 71, 259 D.L.R. (4th) 474, 342 N.R.

126, 2005 SCC 71, J.E. 2005-2230, 206 O.A.C. 150, 202 C.C.C. (3d) 1, 33

C.R. (6th) 1, 2005 SCC 71, 135 C.R.R. (2d) 318, 67 W.C.B. (2d) 504, EYB

2005-98281; R. v. Y. (N.), [2008] O.J. No. 2069, 2008

24543 (S.C.J.); R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, [1992]

S.C.J. No. 70, 1992 75 (SCC), 95 D.L.R. (4th) 202, 140 N.R. 1, J.E. 92-1309,

1992 75 (SCC), 56 O.A.C. 161, 75 C.C.C. (3d) 449, 16 C.R. (4th) 1, 10 C.R.R.

(2d) 193, 1992 75 (SCC), 17 W.C.B. (2d) 106; Reference re Federal Courts

Act, [2009] F.C.J. No. 1266, 2009 FCA 234, 395 N.R. 1, 202

C.R.R. (2d) 156; Reference re ss. 193 and 195.1(1)(c) of the

Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No.

52, 1990 105 (SCC), 109 N.R. 81, [1990] 4 W.W.R. 481, J.E. 90-907, 68 Man. R.

(2d) 1, 1990 105 (SCC), 56 C.C.C. (3d) 65, 77 C.R. (3d) 1, 48 C.R.R. 1, 10

W.C.B. (2d) 191; Rocket v. Royal College of Dental Surgeons

of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232, [1990] S.C.J. No. 65, 71

D.L.R. (4th) 68, 1990 121 (SCC), 111 N.R. 161, J.E. 90-962, 40 O.A.C. 241, 47

C.R.R. 193, 1990 121 (SCC), 21 A.C.W.S. (3d) 958; R.W.D.S.U. v. Dolphin

Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, [1986] S.C.J. No. 75, 33

D.L.R. (4th) 174, 1986 5 (SCC), 71 N.R. 83, [1987] 1 W.W.R. 577, J.E.

87-81, 1986 5 (SCC), 9 B.C.L.R. (2d) 273, 38 C.C.L.T. 184, 87 CLLC ¶14,002

at 11986 5 (SCC), 2037, 25 C.R.R. 321, 2 A.C.W.S. (3d) 243; [page326]

Suresh v. Canada (Minister of Citizenship and Immigration),

[2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, 208

D.L.R. (4th) 1, 2002 SCC 1, 281 N.R. 1, J.E. 2002-161, 37 Admin. L.R.

(3d) 159, 2002 SCC 1, 90 C.R.R. (2d) 1, 18 Imm. L.R. (3d) 1, 110

A.C.W.S. (3d) 1104; United States of America v. Dynar (1997),

1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64,

1997 359 (SCC), 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C.

321, 1997 359 (SCC), 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d)

189, 1997 359 (SCC), 35 W.C.B. (2d) 8; United States of America v. Nadarajah

(2009), 2009 9482 (ON SC), 95 O.R. (3d) 514, [2009] O.J. No. 946, 243 C.C.C.

(3d) 281 (S.C.J.)

Statutes referred to

Anti-terrorism Act, S.C. 2001, c. 41

Canadian Charter of Rights and Freedoms, ss. 1, 2, (a), (b),

(d), 7

Corrections and Conditional Release Act, S.C. 1992, c. 20, s.

120(1) [as am.]

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 23(1), 51,

52, 53, 57(2), 81(1), (a), (d), Part II.1 [as am.], 83.01 [as

am.], (1), (a), (i)-(x), (b), (i)(A), (B), (ii), (A)-(E),

(1.1), (2), 83.03(a), 83.05 [as am.], 83.2, 83.18, (1),

83.19, 83.21(1), 83.26, 151 [as am.], 152 [as am.], 467.11,

467.12, 467.13, 467.14, 718.2(c), 743.6(1)

Criminal Code Act 1995 (Cth), s. 100.1

Explosive Substances Act 1883 (U.K.), 46 & 47 Vict. c. 3

Extradition Act, S.C. 1999, c. 18, s. 29

Protection of Constitutional Democracy Against Terrorist and

Related Activities Act, No. 33 of 2004, s. 1(1)(xxv)(c)

Terrorism Act 2000 (U.K.), 2000, c. 11 [as am.], s. 1(1)(c) [as

am.]

Terrorism Suppression Act 2002 (N.Z.), 2002/34, s. 5

Title 18--Crimes and Criminal Procedure, 18 U.S.C. 2331

Authorities referred to

Colvin, Eric, and Sanjeev Anand, Principles of Criminal Law,

3rd ed. (Toronto: Thomson Carswell, 2007)

Commission of Inquiry into the Investigation of the Bombing of

Air India Flight 182, Air India Flight 182: A Canadian

Tragedy, vol. 1 (Ottawa: Public Works and Government Services

Canada, 2010)

Fisse, Brent, Howard's Criminal Law, 5th ed. (Sydney: Law Book

Co., 1990)

Plaxton, Michael, "Irruptions of Motive in the War on Terror"

(2007), 11 Can. Crim. L. Rev. 233

Roach, Kent, "Terrorism Offences and the Charter: A Comment on

R. v. Khawaja" (2007), 11 Can. Crim. L. Rev. 271

Saul, Ben, Defining Terrorism in International Law (London:

Oxford University Press, 2008)

Senate of Canada, Proceedings of the Special Senate Committee

on the Subject Matter of Bill C-36, 1st Sess., 37th Parl.,

No. 1 (October 22, 2001)

Stuart, Don, Canadian Criminal Law: A Treatise, 5th ed.

(Toronto: Thomson Carswell, 2007)

Webb, Maureen, "Essential Liberty or a Little Temporary Safety?

The Review of the Canadian Anti-terrorism Act" (2005), 51

Crim. L.Q. 53

Williams, Glanville, Textbook of Criminal Law, 2nd ed. (London:

Stevens & Sons, 1983)

@6

APPEAL by the accused from the constitutional ruling of

D.J.A. Rutherford J., 2006 63685 (ON SC), [2006] O.J. No. 4245, 214 C.C.C. (3d) 399

(S.C.J.) and from convictions entered by D.J.A. Rutherford

J., 2008 92005 (ON SC), [2008] O.J. No. 4244, 238 C.C.C. (3d) 114 (S.C.J.); APPEAL

by the accused and CROSS-APPEAL by the Crown from sentences

imposed by D.J.A. Rutherford J., 2009 100210 (ON SC), [2009] O.J. No. 4279, 248

C.C.C. (3d) 233 (S.C.J.). [page327]

@8

Lawrence Greenspon and Eric Granger, for appellant.

Beverly Wilton, Nicholas E. Devlin and Ian Bell, for

respondent.

@7

BY THE COURT: --

Overview of the Proceedings

[1] In the aftermath of the horrific terrorist attacks in the

United States on September 11, 2001, Canada, like many other

democracies, enacted a comprehensive anti-terrorism law. Bill

C-36, the Anti-terrorism Act, S.C. 2001, c. 41, received Royal

Assent on December 18, 2001. The Act made significant

amendments to the Criminal Code, R.S.C. 1985, c. C-46, gave the

police new investigative powers and created several new

offences targeting terrorist activities and terrorist groups.

[2] The application of the terrorism-related offences

introduced by Bill C-36 hinges on the commission of "terrorist

activity" as defined in s. 83.01(1) of the Criminal Code. The

central issues in these proceedings involve (1) the

constitutionality and interpretation of the statutory definition

of "terrorist activity" set out in s. 83.01(1)(b); and (2) the

proper approach to be taken in sentencing those convicted of

terrorism-related offences. [See Note 1 below]

[3] These important questions are matters of first impression

for this court. The appellant is the first person to be tried

for terrorism-related offences in Ontario. After a lengthy

trial before a judge alone, which included several pre-trial

motions, the appellant was acquitted on two of the terrorism

charges (counts 1 and 2), although he was convicted of included

offences that did not require proof of terrorist activity. The

appellant was convicted of five terrorism offences (counts 3 to

7). He received sentences totalling 10[cents] years, having

spent almost five years in custody prior to his sentencing.

[4] The appellant appeals his convictions and, alternatively,

seeks leave to appeal and, if leave is granted, appeals the

sentences imposed. The Crown seeks leave to appeal the

sentences and, if leave is granted, appeals those sentences by

way of cross-appeal.

[5] For the reasons that follow, we would dismiss the

conviction appeal. We would grant the Crown leave to appeal

sentence, allow the cross-appeal and impose a life sentence. We

would dismiss the appellant's sentence appeal as moot.

[page328]

Overview of the Charges and the Verdicts

[6] The Criminal Code does not criminalize terrorist activity

per se and does not make membership in a terrorist group a

crime. It does, however, create a series of crimes which,

broadly speaking, make it an offence to engage in conduct that

facilitates, promotes, assists or otherwise encourages terrorist

activities or terrorist groups. The terms, "terrorist activity"

and "terrorist group", are both defined in Part II.1 of the

Criminal Code. [See Note 2 below] Those definitions are integral

to the description of terrorism offences created in Part II.1 of

the Criminal Code.

[7] The charges against the appellant alleged that he acted

for the benefit of and in conjunction with a group of persons

in England led by a person named Omar Khyam (the "Khyam

group"). The Crown alleged that the Khyam group constituted a

"terrorist group" within the meaning of the Criminal Code

and that the group was engaged in "terrorist activity" as

defined in the Criminal Code.

[8] Counts 1 and 2 in the indictment alleged offences under

s. 83.2. That section creates the crime of committing an

indictable offence "for the benefit of, at the direction of or

in association with a terrorist group". Counts 1 and 2 in the

indictment can be summarized as follows:

Count 1 developing a device to activate a detonator, with intent

to cause an explosion of an explosive substance likely

to cause serious bodily harm or death to persons or

serious damage to property, contrary to s. 81(1)(a), and

committing the said indictable offence for the benefit

of or in association with a terrorist group, namely,

Omar Khyam and others, contrary to s. 83.2 of the

Criminal Code; and

Count 2 making or possessing an explosive substance with intent

to enable another person to endanger life or cause

serious damage to property for the benefit of a

terrorist group, contrary to ss. 81(1)(d) and 83.2 of

the Criminal Code.

[9] The trial judge concluded that the Crown had proved the

appellant's commission of the underlying indictable offences

alleged in counts 1 and 2, but had failed to prove that the

appellant, in committing those indictable offences, had

intended to [page329] facilitate or otherwise assist in the

Khyam group's specific plot, which was referred to in the

evidence as the "U.K. fertilizer bomb plot". The details of

this plot are discussed below. The trial judge held that,

without that specific purpose, the appellant could not be

convicted of the full offences in counts 1 and 2. He did,

however, convict on the included offences of developing a

device with the intent to cause an explosion likely to cause

serious bodily harm or death (count 1) and making an explosive

substance with intent to enable another person to endanger life

(count 2).

[10] Counts 3 to 7 alleged specific terrorism offences. Those

counts can be summarized as follows:

Count 3 knowingly participating in or contributing to the

activity of a terrorist group by receiving training for

the purpose of enhancing the ability of the terrorist

group to facilitate or carry out terrorist activity,

contrary to s. 83.18(1) of the Criminal Code;

Count 4 knowingly instructing a person to carry out financial

activity for the benefit of a terrorist group for the

purpose of enhancing the ability of the terrorist group

to facilitate or carry out terrorist activity, contrary

to s. 83.21(1) of the Criminal Code;

Count 5 providing and making available property and financial

services to persons, intending or knowing that they

would be used, in whole or in part, for the purpose of

facilitating or carrying out terrorist activity,

contrary to s. 83.03(a) of the Criminal Code;

Count 6 knowingly participating in or contributing to an

activity of a terrorist group for the purpose of

enhancing the ability of the terrorist group to

facilitate or carry out a terrorist activity, by

participating in dialogue, meetings or exchanges of

information relating to the development of an explosive

device intended to endanger life or cause serious damage

to property, contrary to s. 83.18 of the Criminal Code;

and

Count 7 knowingly facilitating a terrorist activity, contrary to

s. 83.19 of the Criminal Code.

[11] The trial judge convicted the appellant on counts 3

through 7. Counts 3, 4 and 6 required proof that the

appellant's conduct was done for the purpose of enhancing the

ability of a [page330] "terrorist group" to facilitate or carry

out "terrorist activity". Counts 5 and 7 required proof that

the appellant engaged in conduct knowing that it would

facilitate "terrorist activity".

Background to the Charges Against the Appellant

[12] The appellant, Mohammad Momin Khawaja, was born in

Ottawa in 1979. During his childhood, he and his siblings spent

several years living with their parents in various Muslim

countries, including Libya, Pakistan and Saudi Arabia. While

the appellant was still a teenager, his family returned to live

in Canada. At the time of his arrest in 2004, the appellant was

almost 25 years of age and was living in the family home in

Ottawa with his three brothers and a younger sister. He was

employed by a company doing contract work for the Canadian

Department of Foreign Affairs and International Trade on a

computer software-related project.

[13] The appellant came to the attention of Canadian law

enforcement authorities as a result of "Operation Crevice", an

investigation of suspected terrorists in London, England

conducted by the London police and the British Security

Service. Operation Crevice involved both physical and

electronic audiovisual surveillance of the targeted suspects.

Evidence gathered during Operation Crevice revealed that, while

visiting London in February 2004, the appellant met with Khyam

and several of his associates and discussed with them a remote

explosive detonator device that he was building in Ottawa at

Khyam's instigation for later use in bombing unspecified

targets in the United Kingdom or elsewhere.

[14] The appellant was arrested by the RCMP on March 29, 2004

and charged with terrorism-related offences under the Criminal

Code.

[15] On March 30, 2004, the day after the appellant's arrest,

Khyam and five others -- Anthony Garcia ("Garcia"), Shujah

Mahmood ("S. Mahmood"), Waheed Mahmood ("W. Mahmood"), Jawad

Akbar ("Akbar") and Nabeel Hussain ("Hussain") -- were arrested

in London and charged with conspiring to commit several

terrorism-related offences under the Explosive Substances Act

1883, (U.K.), 46 & 47 Vict. c. 3 and the Terrorism Act 2000,

(U.K.), 2000, c. 11 of the United Kingdom. A seventh man --

Salahuddin Amin ("Amin") -- was arrested in the United Kingdom

in February 2005 and charged as a co-conspirator.

[16] The appellant was named as an unindicted co-conspirator

in the London conspiracy case. Evidence of his involvement with

the Khyam group was introduced at the conspiracy trial of the

[page331] members of that group and later admitted at his

own criminal trial in Ontario.

[17] Evidence at the conspiracy trial in London established

that, in November 2003, Garcia had purchased 600 kilograms of

explosives material -- ammonium nitrate-rich fertilizer

-- which Khyam then placed in storage. Khyam and others had

obtained access to information disclosing the location of high-

pressure gas and electric system sites and equipment in the

United Kingdom. Surveillance evidence also revealed discussions

among members of the Khyam group concerning aspects of violent

Islamic "Jihad" and possible public-facility bomb targets,

including airports, large nightclubs and gas, water and power

utilities in London and elsewhere in the United Kingdom (the

"U.K. fertilizer bomb plot").

[18] On April 30, 2007, following a trial by judge and jury,

Khyam, Garcia, W. Mahmood, Akbar and Amin were convicted of

conspiracy to cause explosions likely to endanger life or cause

serious injury to property. Khyam and Garcia were also

convicted of related offences. All five men were sentenced to

life imprisonment. Hussain and S. Mahmood were acquitted of all

charges: see R. v. Khyam, [2008] EWCA Crim. 1612, [2008] All

E.R. (D) 312 (C.A.).

The Appellant's Trial

[19] At the appellant's trial, most of the background facts

were undisputed. The central issues concerned the available

inferences regarding the appellant's knowledge and intent to be

drawn from the established facts and the legal consequences of

those inferences. In this context, it is sufficient to outline

the more salient facts that are pertinent to the issues before

this court.

(1) The appellant's commitment to violent Jihad

[20] It was the Crown's position at trial that the appellant

was ideologically committed to the advancement of violent

"Jihad" and that he acted in Canada and elsewhere to further

his involvement in Jihad-inspired terrorist activities. Thus,

an appreciation of the appellant's attitude and approach to the

concept of Jihad is key to understanding the issues at his

trial.

[21] On the trial judge's findings, Jihad can mean "anything

from an internal struggle one has within one's self, such as

with a perceived weakness, . . . a struggle with one's faith,

and . . . a physical fight or battle". The appellant's avowed

view of Jihad is both sinister and disturbing. The trial judge

found that, for the appellant, Jihad means "a violent struggle

with the objective of establishing Islamic dominance, wherever

possible". [page332]

[22] The Crown relied at trial on voluminous e-mail

correspondence authored by the appellant that disclosed, in

graphic detail, his active commitment to violent Jihad. An e-

mail he wrote on December 27, 2003, coupled with travel

documents also admitted at trial, established that the

appellant travelled to Pakistan in 2002 with "some bros

[brothers] from UK and else [elsewhere]" for the purpose of

"support[ing] Jihad in Afghanistan". The following excerpt

from the e-mail contains this self-proclamation by the

appellant: [See Note 3 below]

lemme tell u sumthin bout me . . . few yrs ago, when the

kuffar [See Note 4 below] amreekans invaded Afghanistan, that

was . . . the most painful time in my whole life cuz I loved

the . . . mujahideen and our bros in afghanistan so so much

that I couldn't . . . stand it. it would tear my heart knowing

these filthy kaafir dog . . . americans were bombing our

muslim bros and sisters, besides that, . . . Shaykh Usama bin

laden is like the most beloved person to me in the . . . whole

world, after Allah . . . I love . . . Shaykh Usama most in the

world, i wish i could even kiss his blessed . . . hand. So I

hooked up wit some bros from UK and else, and we all . . .

went over to pakistan to support Jihad in Afghanistan in 2002.

we . . . got there and stayed bout 3 months there, till Allah

willed we came . . . back. Then we had problems that none of

the foreign mujahideen bro's . . . could get jihadi training

cuz all the jihad training camps were shut . . . down in

Pakistan cuz of those Munafiqeen government of Musharraf[.]

[23] Other e-mails written by the appellant in August 2003 to

Zeba Khan ("Khan") -- a young woman who, for a time, was his

fianc‚e -- illustrate his dedication to violent Jihad and what

he termed "Islamic Activism":

As for my goals in life, My main goal is to live as a Muslim

in a state that Allah is pleased with me. . . . I strongly

believe in the concept of Hijra and Jihad. Basically,

migrating to preserve and build our Deen, and supporting our

oppressed brothers and sisters in any and every way possible,

whether physically, financially, or morally, in deterring

those who wish to destroy Islam and the Muslims.

I'm just a wanna-be gung-ho Islamic. I'm kinda looking for

someone more active than I am so I can join them in Islamic

Activism.

(Emphasis added)

[24] That the appellant's stance on Jihad is far from benign,

and expressly extends to a willingness to engage in violent

activities, was revealed by a series of chilling e-mails that

he [page333] wrote to Khan in September and October 2003. In

these e-mails, the appellant expressed his support for

preparing for Jihad by training in warfare and the use of

weaponry, by adopting a "war-like mentality" against those at

"war with Islam", and by "bringing down . . . the enemy

. . . by whatever means available or necessary". The appellant

wrote:

For a sincere Muslim, guns, warfare, and weaponry are a means

of defense, a means of deliverance, and something which

enables him to carry out the obligation of Jihad. . . . So

engaging in Jihad also requires us to prepare in the best of

ways. Not only spiritually in Deen, but also train with

excellence in warfare and the best of weaponry . . . A war-

like mentality is needed against the Kuffar (governments,

armies, supporters) because they 'are' at war with us.

America is at war with Islam. Israel is at war with Islam, so

we do not treat Ariel Sharon and George Bush with compassion,

do we? They have slaughtered tens of thousands of our

brothers and sisters. The blood of the Ummah has been spilt.

. . . This is the precise reason for the Jihad, the training,

warfare, weaponry, and war-like mentality against those who

commit acts of aggression.

So under certain specific circumstances, a major sin becomes

a praiseworthy, noble, and mandatory action . . . True

economic J is when we go after the governments and various

institutions and scam large, pulling off elaborate scams

worth millions and using that for the J. Its about bringing

down the kuffar enemy dealing blow after blow, by whatever

means available or necessary . . . picture this, a young bro

wearing an explosive vest walks into a busy Israeli nightclub

and in midst of all the partying, he presses a button and

detonates, killing himself and dozens around him. Suicide or

Martyrdom? . . . Now think about this, Islam forbids suicide

as a heinous crime, a very major sin. So how on earth can

such a huge sin be considered one of the most noble acts,

martyrdom? . . . The reason why this is permissible and noble

is because there is absolutely NO other way of fighting them

except this . . . So sometimes things that seem wrong from

face-value due to our lack of info or understanding, such as

certain operations that Muj carry out against the kuffar, may

in fact be very noble deeds with great long-term benefits for

the Muslim Ummah.

[W]e know that the only way the Kuffar support their wars are

with their economies. So we have to come up with a way that

we can drain their economy of all its resources, cripple

their industries, and bankrupt their systems in place. All so

that they are forced to withdraw their troops, so they cannot

afford to wage war, get them so entangled with problems at

home that they dare not worry about attacking us or

supporting others in attacking us. We need constant economic

J, blow after blow, until they cripple and fall, never to

rise again. . . . What did Sept. 11 do to America?

. . . Would you not say that the actions of 19 men on Sept.

11 are the most accurate, effective, and honorable way of

conducting economic J? Imagine if there were 10 Sept 11's,

wouldn't that accurately bring America down, never to rise

again? Yes, I understand that innocent human beings died, but

there is absolutely no other way of achieving the same

objective with the same effect. . . . Allah ta'ala willed for

events to occur in this manner, so they're happening as

decreed. Our job is to contribute as best as possible the

destruction of the enemies of [page334] Allah, and help out

the cause of Deen so that the word of Allah dominates over

all other ways.

(Emphasis added)

(2) The appellant's 2003 activities

[25] In July 2003, the appellant returned to Pakistan, via

London. He remained in Pakistan for approximately two weeks.

Prior to this trip, he had entered into a form of covert e-mail

correspondence with Junaid Babar ("Babar"), a 34-year-old

American of Pakistani descent who eventually pled guilty in New

York City to five counts of providing material support or

resources to al Qaeda. Babar testified for the Crown at the

appellant's trial. His evidence about the appellant's

activities was especially damning.

[26] According to Babar, the appellant stayed at his

residence while in Pakistan in July 2003. Khyam was also

present. The appellant and Khyam spent several days at a small

arms training camp that Babar and others had earlier

established in northern Pakistan. After his trip to the

training camp, the appellant excitedly relayed to Babar that he

had fired the available camp weaponry, including a rocket-

propelled grenade launcher, an AK-47 and a light machine

gun.

[27] Babar said that Khyam planned to use the training camp

for explosives training. To that end, after the appellant left

Pakistan, Khyam, Babar and others returned to the training camp

and, using previously assembled ingredients, successfully

detonated an improvised explosive device, producing a small

crater in the earth.

[28] Although the explosives material was present in Babar's

home when the appellant stayed there, and the appellant

attended the training camp and used the weapons cached there,

Babar testified that Khyam's plan to use the camp for

explosives training was unknown to the appellant.

[29] However, Babar also said that while the appellant was in

Pakistan, he gave Khyam money that was intended partially for

"zakat" -- a charitable gift to the poor -- and partially

for the use of "the brothers" in an explosives operation in the

United Kingdom or Europe planned by Khyam.

[30] In October 2003, the appellant returned to Pakistan, via

London, for a third time. He brought supplies obtained by him in

London from Khyam, including a medical kit, invisible-ink pens,

two SIM cards [See Note 5 below] and 800-1,000 pounds sterling

and a quantity of Canadian currency. He delivered the SIM cards

to Babar and [page335] the cash to Amin, with whom he met while

in Islamabad. Babar understood that he was to use the SIM cards

to remain in contact with Khyam when transporting detonators

from Pakistan to Europe.

[31] The appellant also travelled with Babar to the training

camp that he had attended in July, as he wished to again fire

the grenade launcher stored at the camp. When this proved

impossible due to a shortage of ammunition, the appellant

returned to Islamabad and flew back to Ottawa shortly

thereafter. Before his departure, Amin told the appellant to

keep him informed of his activities through Khyam.

[32] The appellant's assistance to members of the Khyam group

did not end there. The trial judge found that, prior to his

July 2003 trip to Pakistan, the appellant made available a

residence in Pakistan owned by his parents to members of the

Khyam group.

[33] The trial judge also found that, throughout 2003 and

2004, the appellant provided additional funds -- beyond those

given by him to Amin in October 2003 -- to support Babar, Khyam

"and the bros' in their jihadist efforts". For this purpose,

the appellant recruited and used a young Muslim woman in Ottawa

to assist in opening an Ottawa bank account and instructed her

to transfer money to Khyam and his associates in the United

Kingdom from that account and other sources on multiple

occasions.

(3) Development of remote detonator devices

[34] The appellant reported to Khyam by e-mail on his October

2003 trip to Pakistan. He began discussing the development of a

remote detonator device. In an October 2003 e-mail to Khyam,

the appellant said:

Also bro, I will start on the remote devices thing right

away, and will let u know once we have it ready for testing,

and I find some of the things for testing, Urea, nitro

phosphate, anything else we need?

[35] In the same e-mail, the appellant offered to purchase

night-vision goggles in Canada "for the bros" and inquired:

"[A]nything else bro that we need to do, or any help needed

with anything?"

[36] In a subsequent e-mail to Khyam sent later the same

month, the appellant made the disturbing proposal that a

supporter of the Khyam group -- "Immy", a man who appears to

have been mentally challenged -- be sent to Israel on a suicide

mission. The appellant wrote:

also bro, when I was in PK me and kash [Babar] talked about

immy, wats he gonna do there? . . . we have a suggestion, to

use the bro for a one-way operation [suicide mission] to the

most high . . . maybe in Yahoodi land [Israel] . . . what do

you think? [page336]

[37] In a series of other e-mails exchanged with Khyam

throughout the fall of 2003 and the early winter of 2004, the

appellant confirmed that he was working on the design of a

remote detonator device with the intent of smuggling the device

into London. The evidence indicated that both the appellant and

his older brother, Qasim Khawaja, were involved in this effort.

[38] In his e-mails to Khyam, the appellant stated that,

after testing the device: "[W]e can start making lots of

these." He also said: "[W]e're startin 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."

[39] In other e-mails between the appellant and Khyam in

February 2004, the appellant repeatedly raised the issue of how

he could bring the remote detonator device he was working on

into the United Kingdom without it being detected by the

responsible authorities. Khyam ultimately told him: "[A]bout

the device its better we leave it wil xplain later we will

discuss it and maybe show pics at most."

[40] On February 20, 2004, the appellant flew to London for

two days, where he met with Khyam and S. Mahmood. Unbeknownst

to the appellant, both men were under surveillance by the

British authorities. As a result, the appellant's activities

were monitored and many of his conversations were intercepted

and recorded.

[41] The surveillance evidence established that, while in

London, the appellant showed Khyam and S. Mahmood a digital

photograph of the device he had built in Ottawa, which he

called the "hifidigimonster". Intercepted conversations between

Khyam and the appellant left no doubt that the hifidigimonster

was a prototype device intended for potential inner-city use.

For instance, the appellant described the frequency of the

device to Khyam in these terms: "[I]t's actually impossible for

them near urban areas to block it out because they literally

use a lot of that themselves."

[42] The surveillance evidence further indicated that, during

this visit to London, the appellant suggested that S. Mahmood

and others travel to Canada to "go shooting and stuff" for

weapons training. He also volunteered to train Khyam and others

in the use of the hifidigimonster. In one recorded conversation

with Khyam, the appellant stated:

I can teach you the theory of it. Cover all the facts and all

those other bits, then in the summer I'll set up a course

together, someone can deliver it to the grunts of course

. . . the theory will be covered in two or three days, you

know like how to calculate electric surge, voltage.

[43] The appellant and Khyam also discussed possible further

trips to Pakistan and the smuggling of outdoor clothing and

gear [page337] into that country. When the appellant told Khyam

of a Canadian company that regularly shipped outdoor equipment

and clothing to Pakistan, Khyam directed him to "[f]ind out the

details from your side".

[44] On his return to Ottawa from London, the appellant

continued a steady stream of e-mails to Khyam in which he

renewed his offers of assistance to the Khyam group. In a March

2004 e-mail, the appellant suggested that he again travel to

meet with Khyam, inquiring: "[I]s there activities I cud help

out with?" and "[I]f u think it would be a good idea for me to

pack up and head down with u niggas. [See Note 6 below] of

course, i would do loads of shopping for the niggas first."

[45] Shortly thereafter, the appellant sent this

incriminating e-mail to Khyam:

im putting together up to 30 devices for u niggas, we will

test out stuff too . . . also, we can manufacture our own

torches, the LED ones, with headset, for very cheap from

right here. . . . also, will get supplies for the niggas

. . . is there anythign specific u bros want? . . . u bros

need anything? . . . we can get military gear, like vests,

bags, magazine vests, etc. stuff like that from here for

cheap, so let me know if u need anything.

(4) Police seizure of the hifidigimonster and related items

[46] The RCMP searched the appellant's residence on March 29,

2004, the day of his arrest, and seized various items. These

included an array of electronic components and devices;

electronics instructional literature and tools; an electric

model-airplane engine; a model airplane in parts; three non-

restricted semi-automatic 7.62 calibre military rifles

registered to the appellant and 640 rounds of the same calibre

ammunition; a pellet rifle; a paintball gun; two knives; five

computer hard drives; $10,300 in one-hundred dollar bills found

under the mattress in his brother Qasim's bedroom; and military

and Jihad-related books discovered in the appellant's bedroom.

[47] The hifidigimonster was also seized from Qasim's room.

Seized invoices and delivery documents from electronics

suppliers corroborated the handmade assembly process used for

the device. The seized hifidigimonster had been modified in

several respects from the photographed version of the device

that the appellant had showed to Khyam and S. Mahmood during

his February 2004 trip to London. [page338]

(5) Expert evidence concerning the hifidigimonster

[48] Sergeant Sylvain Fiset, an RCMP explosives expert,

testified at trial regarding his construction and testing of

devices similar to the hifidigimonster, both as photographed by

the appellant and as seized by the police. Based on his testing

of these replica devices, Sergeant Fiset said that the

photographed hifidigimonster had a radio frequency range of

"some 300 metres in open terrain, and about 150 metres in a

downtown urban setting". The seized hifidigimonster had a

reduced range -- about 200 metres in the open and 100 metres in

a downtown area. According to Sergeant Fiset, the seized

hifidigimonster was potentially capable of being used to

trigger or arm an improvised explosive device ("IED"). However,

Sergeant Fiset acknowledged that, because the power regulator

in the seized device was only a 0.1 amp regulator, it would not

trigger an IED, but would only trigger a light-emitting diode

("LED").

[49] Sergeant Fiset further testified that additional

electronic components suitable for building more remote

detonator devices were found in the appellant's residence,

together with three illegal jamming devices found in Qasim's

room. No blasting caps, other detonators or any explosives

components were discovered in the home.

[50] Sergeant Fiset offered the opinion that the detonation

of 600 kilograms of ammonium nitrate fertilizer "would provoke

certainly structural damage . . . to infrastructure such as

electrical conduits, gas pipelines located underground because

of the seat of the explosions" and, if people were present,

"would provoke death and serious injuries".

(6) Motion for directed verdicts

[51] After the close of the Crown's case, the appellant moved

for directed verdicts of acquittal on all seven counts. He

submitted that the Crown's case as originally conceived and

developed at trial was premised on the assertion that his

alleged "participation, facilitation and financing of one

common design . . . namely, the London fertilizer bomb plot"

(emphasis added), constituted the terrorist activity

underlying all counts. The appellant argued that, because there

was no direct or circumstantial evidence from which it could

reasonably be inferred that he had any knowledge of this

specific plot, the requisite mens rea to sustain convictions on

counts 1 and 2 had not been established.

[52] With respect to the remaining counts, the appellant did

not deny the conduct underlying them. However, he maintained

that the evidence demonstrated that he committed the acts in

[page339] question, including his role in creating the

remote detonator devices for the Khyam group, for the purpose

of participating in and supporting "armed conflict", namely,

the Islamist insurgent fighting in Afghanistan. The appellant

asserted that what the Crown had in fact proved at trial was

not his knowledge of or participation in the "London fertilizer

bomb plot", but rather his "involvement in a different plan,

namely, to be a frontline Jihadi soldier in Afghanistan".

[53] The appellant then argued that, at the conclusion of the

trial, the Crown had impermissibly shifted the basis on which

it sought to secure convictions by claiming that the "overall

common design" in respect of all counts was "violent Jihad

wheresoever it might ultimately be committed".

[54] The Crown acknowledged on the directed verdicts motion

that the "U.K. fertilizer bomb plot" (emphasis added) was the

focus of counts 1 and 2. However, as the evidence did not

establish a selected target for that plot, the Crown contended

that a conviction on the first two counts could be grounded on

the evidence that the appellant was a party to a plan to bomb

one or more of several possible targets in the United Kingdom.

The Crown also emphasized that the remaining counts as framed

in the indictment did not particularize specific terrorist

activity.

[55] The trial judge dismissed the directed verdicts motion.

He held that it would at least be open to a trier of fact on

the Crown's evidence to draw the inference in relation to

counts 1 and 2 that "Khawaja was a knowing participant with

Omar Khyam and others in the London area in a scheme to explode

improvised explosive devices at a place or places in the United

Kingdom." Further, as counts 3 to 7 were not focused on a

London, or even a United Kingdom, fertilizer bomb plot, it

would be open to a trier of fact to find that the appellant

acted "to facilitate or carry out, in whole or in part,

terrorist activity and in association with or assisting or

enhancing a terrorist group in so doing".

(7) Defence calls no evidence

[56] The appellant did not testify at trial. Nor did he call

any evidence in his own defence. Thus, he offered no evidence

about his knowledge of the Khyam group's objectives, his

interactions with members of the Khyam group, his own

intentions regarding the group's activities or his

understanding of the nature of the conflict in Afghanistan.

(8) Trial judgment

[57] In his reasons for judgment, the trial judge [[2008]

O.J. No. 4244 (S.C.J.)] held that, based on the position taken

by [page340] Crown counsel in opening submissions, the primary

offences charged in the first two counts against the appellant

related to his knowledge of the U.K. fertilizer bomb plot.

Although in his directed verdicts ruling the trial judge had

held that it would be open to a trier of fact to find that the

appellant knew of this plot, he ultimately concluded that the

Crown had failed to establish on the requisite criminal

standard that the appellant knew of the existence of the U.K.

fertilizer bomb plot, or that he intended by his activities to

facilitate that plot (at para. 101):

The evidence does not lead inescapably, or beyond a

reasonable doubt, to the conclusion that Momin Khawaja was

privy to the fertilizer bomb plot or its existence. On that

basis, given the narrow focus cast by the prosecution on

counts 1 and 2, the necessary mens rea or guilty knowledge of

the fertilizer bomb plot has not been established to the

requisite level of proof, and I am unable to find Momin

Khawaja guilty as charged on those 2 counts.

[58] The trial judge observed that each of counts 1 and 2 also

alleges the commission of indictable offences under s. 81(1) of

the Criminal Code. [See Note 7 below] He pointed out that the

appellant admitted through counsel that there was evidence on

which a properly instructed jury could find him guilty beyond a

reasonable doubt on the included offences of acting with intent

to cause an explosion (count 1) and possession of an explosive

(count 2). The trial judge found, at para. 106, that the

appellant knew he was building a device to trigger explosions

that were intended to cause injury or death and serious property

damage based on "the whole context of violent Jihad which

brought Khawaja together with Khyam" and the other members of

the Khyam group. He thus entered convictions on the included

offences.

[59] In respect of counts 3 to 7, the trial judge noted, at

para. 108, that the prosecution did not restrict these counts

to the U.K. fertilizer bomb plot. The Crown's position was that

the preparation [page341] for and support of the insurgency

against the coalition forces in Afghanistan constituted the

enhancing or facilitating of a terrorist group and a terrorist

activity.

[60] The defence position was that the appellant's actions

were directed solely to the furtherance of insurgent fighting

in Afghanistan and that his actions fell outside the definition

of terrorist activity because of the exclusionary clause in the

definition for acts committed during an armed conflict in

accordance with customary or conventional international law. We

discuss this so-called "armed conflict exclusion" later in

these reasons.

[61] The trial judge rejected both aspects of the defence

position. He held, at para. 129, that the appellant's actions

did not come within the armed conflict exception to the

statutory definition of terrorist activity. He also held, at

paras. 130-31, that the appellant knowingly acted to support

the Khyam group's broader terrorist agenda beyond front-line

combat in Afghanistan. His findings, at paras. 134-39, in

relation to the individual counts may be summarized as follows:

Count 3 By taking weapons training at the camp in northern

Pakistan, the appellant had the object of enhancing the

ability of a terrorist group to facilitate or carry out

terrorist activity.

Count 4 The appellant deceived a young woman into acting as a

conduit to pass funds, including a bank card, to Khyam

and his group. The funds were for the purpose of

enhancing the ability of the group to facilitate or

carry out terrorist activity.

Count 5 The appellant made his parents' residence in Pakistan

available for the use of Babar, Amin, Garcia or any of

the people Khyam needed housing for. Since the

relationship between the appellant and Khyam involved

the pursuit of their common objective of violent Jihad,

the offer of the residence was to facilitate terrorist

activity. It is immaterial that the residence was not

actually used by members of the terrorist group.

Count 6 Everything the appellant did in relation to developing

the remote detonator device, including his reports to

Khyam and meeting with him in February 2004, amounted to

participating in or contributing to the activity of a

terrorist group for the purpose of enhancing the group's

ability to carry out terrorist activity. [page342]

Count 7 The appellant's actions in transporting money, a medical

kit, the SIM cards and invisible-ink pens from Khyam to

Babar and Amin; his offer to acquire equipment like

night-vision goggles; his suggestion that Khyam and S.

Mahmood come to Canada for shooting practice; his offer

to provide a course in electronics to Khyam; the

suggestion that "Immy" be sent on a suicide mission to

Israel; and his discussion with S. Amin about putting

his computer skills to work to assist "the bros" were

all things knowingly done by the appellant to assist the

terrorist purposes of the group.

[62] Based on these findings, the trial judge entered

convictions on the offences in counts 3 through 7.

I. Conviction Appeal

[63] There are five issues on the conviction appeal:

(1) Did the trial judge err by severing the "motive clause" in

s. 83.01(1)(b)(i)(A) of the definition of terrorist

activity and thereafter registering convictions for

offences unknown to law?

(2) Did the trial judge err by convicting the appellant on a

different case than that set out in the Crown's opening

statement at trial?

(3) Did the trial judge err by holding that the "armed conflict

exception" to the definition of terrorist activity, set out

in s. 83.01(1)(b)(ii) of the Criminal Code, is inapplicable

in this case?

(4) Did the trial judge err by taking judicial notice of the

geo-political situation in Afghanistan and of international

law?

(5) Are the convictions on counts 3 to 7 unreasonable?

(1) The constitutionality of the motive clause

(i) The ruling at trial

[64] On a pre-trial motion, the appellant challenged the

constitutionality of the offence-creating provisions in Part

II.1 of the Criminal Code. He claimed that they were so vague

and so broad as to violate s. 7 of the Canadian Charter of

Rights and Freedoms. These arguments failed at trial and were

not renewed on this appeal. The overbreadth argument, however,

was raised in [page343] United States of America v. Nadarajah

(2009), 2009 9482 (ON SC), 95 O.R. (3d) 514, [2009] O.J. No. 946, 243 C.C.C. (3d)

281 (S.C.J.), [See Note 8 below] companion extradition appeals

from the orders of Pattillo J. directing the committal of the

appellants for surrender to the United States pursuant to s. 29

of the Extradition Act, S.C. 1999, c. 18. We will address the

overbreadth argument in our reasons disposing of those appeals,

released concurrently with these reasons.

[65] The appellant in this case also challenged the

constitutionality of the definition of "terrorist activity",

and in particular, s. 83.01(1)(b)(i)(A). That provision

requires the Crown to prove that the relevant act or omission

was committed "in whole or in part for a political, religious

or ideological purpose, objective or cause". The appellant

argued that this provision infringes s. 2(a) and s. 2(b) of the

Charter. Section 2(a) protects freedom of religion and

conscience and s. 2(b) protects freedom of thought, belief,

opinion and expression. The trial judge referred to s. 83.01(1)

(b)(i)(A) as the "motive clause". We will use that

description to avoid continual reference to the complex letter

and number designation of the section.

[66] In his ruling reported at 2006 63685 (ON SC), [2006] O.J. No. 4245, 214

C.C.C. (3d) 399 (S.C.J.), the trial judge did not find that the

conduct defined in "terrorist activity" was protected by any

part of s. 2 of the Charter. Instead, he found a violation of

s. 2, not as it applied to anyone who might engage in the

conduct defined as "terrorist activity", but rather in respect

of individuals who shared, or could be seen as sharing, some or

all of the political, religious or ideological beliefs

associated with those who actually engage in "terrorist

activity". The trial judge took the view that persons who

shared or were seen by others as sharing views akin to those

associated with "terrorist activity" would refrain from, or at

least be reluctant to, espouse those views, either because of

the public perception connecting those views to terrorism or

because of the government's tendency to focus its investigative

resources on persons associated with those views.

[67] The trial judge attributed this "chilling effect" on the

rights in s. 2 to Parliament's inclusion of the motive clause

in the definition of "terrorist activity". His reasoning is

captured by the following passages, at paras. 52 and 58, of his

ruling:

Even in cases, however, in which the politics, religion or

ideology of foreign persons or groups must be proven, it

would be likely that such focus would [page344] have some

impact in Canada. Canadians who might share the political,

religious or ideological stripe of the foreign groups under

scrutiny could not help but fall under some sort of shadow.

It is exactly that sort of phenomenon that has given rise to

concerns for racial or ethnic profiling and prejudice in the

aftermath of the notorious terrorist actions in a number of

countries around the world in recent years.

It seems to me that the inevitable impact to flow from the

inclusion of the "political, religious or ideological

purpose" requirement in the definition of "terrorist

activity" will be to focus investigative and prosecutorial

scrutiny on the political, religious and ideological beliefs,

opinions and expressions of persons and groups both in Canada

and abroad. Equally inevitable will be the chilling effect

Webb [an author cited by the trial judge] predicts. There

will also be an indirect or rebound effect of the sort

Professor Stribopoulos [another author cited by the trial

judge] described, as individuals' and authorities' attitudes

and conduct reflect the shadow of suspicion and anger falling

over all who appear [to] belong to [or] have any connection

with the religious, political or ideological grouping

identified with specific terrorist acts. This in my view

amounts to a prima facie infringement or limitation of the

freedoms of conscience, religion, thought, belief, expression

and association such that would have to be justified with

reference to s. 1 of the Charter.

(Emphasis added)

[68] The trial judge further found that the limitation placed

on the rights under s. 2 of the Charter by the motive clause

could not be justified under s. 1 of the Charter. At para. 80,

he held that the Crown had offered "no compelling benefit or

justification" for the clause.

[69] Having determined that the motive clause was

unconstitutional, the trial judge declined to declare the

entire definition of "terrorist activity" of no force and

effect. Instead, he severed the offending clause from the rest

of the definition of "terrorist activity", leaving the

remainder of the definition to be applied to the various

offences that required proof of "terrorist activity". The

remedy granted by the trial judge had the anomalous effect of

easing the Crown's ultimate burden of proof by eliminating an

essential element of the definition of "terrorist activity" as

enacted by Parliament.

(ii) Arguments on appeal

[70] The appellant accepts the trial judge's ruling that the

motive clause is unconstitutional. He submits, however, that

the remedy chosen by the trial judge was inappropriate. The

appellant contends that, having found that a central component

of the definition of terrorist activity was unconstitutional,

the trial judge should have declared the entire definition of

no force and effect and left it to Parliament to decide whether

it wished [page345] to re-enact the definition without the

offending clause. The appellant submits that, if the entire

definition of "terrorist activity" is declared of no force and

effect, then all the offences in Part II.1 incorporating that

definition are rendered of no force and effect.

[71] The respondent Crown argues that the trial judge erred

in holding that the motive clause offends s. 2 of the Charter.

Crown counsel points out that, in contrast with the trial

judge, three other courts that have considered the motive

clause have all upheld its constitutionality: see Nadarajah, at

paras. 29-43; R. v. Ahmad, 2009 84774 (ON SC), [2009] O.J. No. 6151, 257 C.C.C.

(3d) 199 (S.C.J.), at paras. 88-141; Reference re Federal

Courts Act, [2009] F.C.J. No. 1266, 2009 FCA 234, at para. 35.

Alternatively, the Crown argues that if the trial judge was

correct in his constitutional analysis, he was also correct in

the remedy he chose and that severance of the motive clause

from the rest of the definition of "terrorist activity" was the

appropriate order.

[72] Counsel for the appellant, following the trial judge's

analysis, does not argue that the definition of "terrorist

activity" includes conduct that is protected by s. 2 of the

Charter. Before this court, counsel limits his constitutional

argument to the submission that the motive clause violates s. 2

through its "chilling effect" on those who would otherwise be

inclined to express political, religious or ideological beliefs

that are, or might be seen by the public and the authorities

as, similar to the views held by individuals associated with

"terrorist activity". Although the constitutional challenge

does not allege a personal violation of the appellant's

constitutional rights, the Crown, quite properly, does not

challenge the appellant's right to make this argument: R. v.

Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No.

17, at p. 313 S.C.R.; R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481,

2000 5762 (ON CA), [2000] O.J. No. 2787 (C.A.), at paras. 78-80.

[73] In contrast to this case, in Nadarajah and

Sriskandarajah (the "extradition appeals"), the appellants do

argue that some of the conduct captured by the definition of

"terrorist activity" is protected by s. 2 of the Charter. On

this argument, the terrorism offences in Part II.1, which

incorporate "terrorist activity" as an element of the crimes

created by those sections, are unconstitutional unless

justified under s. 1 of the Charter. This claim was

unsuccessfully advanced in the courts below and is renewed on

appeal. These appellants also rely on the "chilling effect"

analysis of the trial judge in the present case as a second

basis for a finding of unconstitutionality.

[74] We think it best to address both arguments based on s. 2

of the Charter at the same time. We will do so in these

reasons. [page346]

(iii) Analysis

(a) The statutory framework

[75] The analysis of the s. 2

Charter arguments in this

appeal and in the extradition appeals requires an understanding

of the statutory framework of the anti-terrorism provisions in

the Criminal Code. We therefore begin with a consideration of

that framework.

[76] "Terrorist activity" is not a crime under Part II.1 of

the Criminal Code. The phrase "terrorist activity" does not

prohibit or criminalize any political, religious, ideological

thought, belief or opinion. The phrase defines certain conduct.

The definition includes the requirement that the defined

conduct be performed for a political, religious or ideological

reason. The distinction between the expression of a belief by

means other than those caught by the definition of "terrorist

activity" and the expression of a belief using "terrorist

activity" is made explicit in s. 83.01(1.1):

83.01(1.1) For greater certainty, the expression of a

political, religious or ideological thought, belief or

opinion does not come within paragraph (b) of the definition

"terrorist activity" in subsection (1) unless it

constitutes an act or omission that satisfies the criteria of

that paragraph.

[77] The phrase "terrorist activity" as defined in s. 83.01

is used as a component of several of the terrorism crimes

created in Part II.1. To prove those crimes, the Crown must

prove that someone, not necessarily the accused, engaged in

conduct amounting to "terrorist activity". To appreciate the

constitutional argument, it is helpful to examine more closely

the language used in the definition of "terrorist activity" and

in related provisions. We begin with the definition of

"terrorist group" in s. 83.01:

"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,

and includes an association of such entities.

(Emphasis added)

[78] The word "entity" is broadly defined and includes a

person or group. Subsection (b) refers to a list that is

established under s. 83.05. It has no relevance in these

proceedings.

[79] The definition in subsection (a) incorporates the phrase

"terrorist activity". "Terrorist activity" is defined in two

different ways in s. 83.01. The definition in subsection (a)

refers to acts or [page347] omissions that would constitute any

of the offences enumerated in (i) through (x) of s. 83.01(1)

(a). This arm of the definition of "terrorist activity" is

not in issue in these proceedings.

[80] The operative definition of "terrorist activity" for

present purposes is found in subsection (b) of s. 83.01(1). We

have placed our descriptor beside each part of the definition

to assist in following the analysis set out below:

[QL:GRAPHIC NAME="103OR3d321-1.jpg"/]

[page348]

[QL:GRAPHIC NAME="103OR3d321-2.jpg"/]

[page349]

[QL:GRAPHIC NAME="103OR3d321-3.jpg"/]

[81] The definition of "terrorist activity" is complex,

having both a conduct and a mental component. The conduct

component, subject to the "armed conflict exception" inserted

in the final paragraph of the subsection, encompasses any act

or omission, a conspiracy, attempt or threat to commit any act

or omission, counselling an act or omission, and being an

accessory after the fact to an act or omission, that causes one

of the five consequences described in s. 83.01(1)(b)(ii)(A)-

(E). For example, and assuming the armed conflict exception

does not apply, s. 83.01(1)(b)(ii)(A) refers to an act or

omission that "causes death or serious bodily harm". The

conduct component of the definition of "terrorist activity" is

established if the Crown proves an act or omission that had

that consequence. The conduct component is also established if

the Crown proves a conspiracy, attempt, threat to commit, or

counselling of an act or omission that if carried out would

cause death or serious bodily harm. Finally, the conduct

component is satisfied if the Crown proves that the individual

acted as an accessory after the fact to an act or omission that

caused death or serious bodily harm.

[82] The mental component of the definition of "terrorist

activity" has three parts. First, as is evident from the use of

the word "intentionally" in s. 83.01(1)(b)(ii), the act or

omission must be done with the intention of bringing about one

of the consequences described in sub-paragraphs (A) through (E)

of that section. In this case, it is not necessary to settle on

the precise meaning of "intentionally" in that particular

context.

[83] Second, the act or omission must be done with the

further intention of bringing about one of the consequences

described in s. 83.01(1)(b)(i)(B), namely

-- the intimidation of the public or a segment of the public

with respect to its security or

-- compelling a person, government or domestic or

international organization to do or refrain from doing any

act. [page350]

[84] The consequences described in s. 83.01(1)(b)(i)(B) need

not actually occur, but must be intended by those engaged in

the conduct. An intention to bring about a consequence that is

not part of the conduct component is described as an ulterior

intention: see E. Colvin and S. Anand, Principles of Criminal

Law, 3rd ed. (Toronto: Thomson Carswell, 2007), at pp. 112,

[85] Third, in addition to proving an intention to bring

about one of the consequences that forms part of the conduct

element of "terrorist activity", and proving the further

intention of bringing about one of the additional consequences

set out in s. 83.01(1)(b)(i)(B), the definition also requires

that the act be done "for a political, religious or ideological

purpose, objective or cause": s. 83.01(1)(b)(i)(A).

[86] Putting the triple-layered fault component of the

definition into the language used to describe the mens rea

component of criminal offences, the definition of "terrorist

activity" requires an intention to bring about the consequence

prohibited in the definition, an ulterior intention with

respect to a further consequence and proof of a specified

purpose or motive.

[87] The definition of "terrorist activity" is made clearer

when removed from the dense and abstract language of the

Criminal Code and placed in the context of the specific

findings of fact made by the trial judge, at paras. 89-90

[2008 92005 (ON SC), [2008] O.J. No. 4244 (S.C.J.)]. He found that Khyam and

others had agreed to cause explosions in the United Kingdom and

elsewhere. This agreement constitutes an "act or omission"

under the definition of "terrorist activity" in s. 83.01(1).

The trial judge further found that, had the scheme been

implemented as planned, there would have been explosions that

were intended to and would have caused death and destruction of

property. This finding satisfies both the consequence component

of the definition and one element of the mental component,

namely, the requirement that the act or conduct be done with

the intention of bringing about that consequence. Further, the

trial judge found that the objectives of the Khyam group

included terrorizing segments of the public in the United

Kingdom and elsewhere with regard to their security. This

finding addresses the ulterior intention requirement in s.

83.01(1)(b)(i)(B). Finally, and although the trial judge struck

the motive clause as unconstitutional, he was satisfied that

the Khyam group had acted in part, at least, for a political,

religious or ideological purpose, thus satisfying the

requirements of s. 83.01(1)(b)(i)(A). [page351]

(b) The relevance of criminalizing motive to the

constitutional argument

[88] Motive refers to the reason, or at least one of the

reasons, that a person chooses to engage in conduct intending

to bring about a certain consequence. One's reason for choosing

to bring about that consequence is one's "motive": R. v. Lewis,

1979 19 (SCC), [1979] 2 S.C.R. 821, [1979] S.C.J. No. 73, at pp. 831-32

S.C.R.; D. Stuart, Canadian Criminal Law: A Treatise, 5th ed.

(Toronto: Thomson Carswell, 2007) at p. 225. We agree with

the trial judge that s. 83.01(1)(b)(i)(A) requires proof of

motive, in that it requires proof that one of the reasons for

engaging in the proscribed conduct was "a political, religious

or ideological purpose, objective or cause". In fact, there are

two motive clauses in the definition of "terrorist activity".

Section 83.01(1)(b)(i)(B), which we have described as the

ulterior intention clause, also requires proof of motive, in

that it requires proof of a reason for which the person brought

about the intended consequence: see K. Roach, "Terrorism

Offences and the Charter: A Comment on R. v. Khawaja" (2007),

11 Can. Crim. L. Rev. 271, at p. 292.

[89] While we agree that s. 83.01(1)(b)(i)(A) is properly

described as a motive clause, we attribute no significance in

the constitutional argument to the fact that the section

requires proof of motive. The mental processes that precede and

generate conduct are multi-faceted and interrelated. They can

be parsed and labelled in a variety of ways. Conduct may have

one or many motives. The same state of mind may be described as

motive, intention or purpose. None of the labels is

intrinsically more accurate than the others. The distinction

between motive and other mental states is often one of

terminology rather than substance: B. Fisse, Howard's Criminal

Law, 5th ed. (Sydney: Law Book Co., 1990), at pp. 485-86.

[90] For example, the offence of break and enter with intent

to steal can be described as requiring proof of the reason or

motive that precipitated the break-in -- an intention to steal.

However, if one wishes to avoid using the word "motive" to

describe an element of the mens rea, one can refer to the

intention to steal as the burglar's ulterior intention and

describe the burglar's motive as his or her desire for

financial gain, a state of mind that is irrelevant to criminal

culpability.

[91] The aphorism that "motive is no part of a crime" does

not express a criminal law principle referable to the permitted

scope of criminal liability, much less a principle of

fundamental justice protected by s. 7 of the Charter. The

aphorism refers to the interpretive rule that, ordinarily, when

interpreting the mens rea [page352] required for criminal

culpability, and absent statutory language to the contrary, the

reason or reasons that cause an accused to engage in prohibited

conduct or to choose to bring about a prohibited consequence

are irrelevant to culpability: United States of America v.

Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997]

S.C.J. No. 64, at pp. 496-97 S.C.R. The aphorism is also a

reflection of the nomenclature used to describe the fault

component of crimes and, more specifically, to distinguish

between states of mind that are relevant to culpability as

described in the statute creating the offence (e.g., intent,

purpose), and states of mind that are not relevant to that

definition (e.g., motive): Colvin and Anand, at pp. 192-93.

Professor G. Williams in his Textbook of Criminal Law, 2nd ed.

(London: Stevens & Sons, 1983) puts it this way, at p. 75:

In ordinary speech, "intention" and "motive" are often

convertible terms. For the lawyer, the word "motive"

generally refers to some further intent which forms no part

of the legal rule.

[92] Nor do we accept that treating motive as relevant to

criminal culpability is foreign to Canadian criminal law.

Motive plays a part in many aspects of the substantive criminal

law, including the definition of the fault component of some

crimes and the definition of exculpatory justifications and

excuses: M. Plaxton, "Irruptions of Motive in the War on

Terror" (2007), 11 Can. Crim. L. Rev. 233; Colvin and Anand, at

pp. 192-93. For example, there are many Criminal Code offences

that require that the prohibited conduct be done for a

specified purpose that is ulterior to the conduct component of

the crime (e.g., s. 23(1) (accessory after the fact), s. 51

(intimidating Parliament or the legislature), s. 52

(sabotage), s. 53 (inciting to mutiny), s. 57(2) (false

statement in relation to passport), s. 151 (sexual

interference), s. 152 (invitation to sexual touching)). The

requirement that the Crown prove "purpose" can refer to

different states of mind, including the requirement of proof of

the reason that precipitated the conduct that brought about the

intended consequence. When purpose is used in this sense, it is

effectively indistinguishable from the concept of motive: R. v.

Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63, at para.

27; R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371, [2004] S.C.J. No. 39, at

paras. 26-27.

[93] Parliament, in defining a crime, can require proof of

the perpetrator's motive as an element of that crime: Hibbert,

at para. 25. A statutory provision that requires proof of

motive is not constitutionally suspect. The motive clause in

the definition of "terrorist activity" signals that Parliament

has determined that motivation for the conduct described in the

definition is a central feature of that which distinguishes

terrorism from other crimes. [page353] On this view, terrorism

is only properly described and labelled for criminal law

purposes by including certain motives as a component of that

definition: see B. Saul, Defining Terrorism in International

Law (London: Oxford University Press, 2008), at p. 39.

[94] Australia, Great Britain, New Zealand and South Africa

have used motive as an element of the definition of "terrorist

activity". [See Note 9 below] The United States has adopted a

definition that makes no reference to motive. [See Note 10

below] It is irrelevant for the purpose of the constitutional

analysis which of the two approaches is preferable from a policy

standpoint. What is germane to the analysis is the undoubted

power of Parliament to make motive part of a crime. The

constitutional concerns generated by this particular motive

clause arise because the nature of the motive identified by

Parliament is so closely associated with the fundamental

freedoms protected by s. 2 of the Charter.

(c) Section 2 of the Charter and the definition of

"terrorist activity"

[95] Section 2 of the Charter guarantees certain fundamental

freedoms:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression,

including freedom of the press and other media of

communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[96] The trial judge did not distinguish between the rights

protected under s. 2(a) (conscience and religion) and s. 2(b)

(thought, belief, opinion and expression). At their

extradition hearings, counsel for Nadarajah and Sriskandarajah

relied on ss. 2(b) and 2(d) (freedom of association) and the

extradition judge in those cases likewise dealt with both

claims together. The arguments in all three appeals is that the

motive clause infringes the right to engage in activities that

express religious beliefs and political opinions. In Ahmad,

Dawson J. examined [page354] similar constitutional claims from

the perspective of the right to freedom of expression

guaranteed in s. 2(b). We propose to follow the same approach

as in Ahmad. The s. 2(b) claim as framed is the broadest of the

Charter infringement claims. If the s. 2(b) claim fails, then

the claims based on the other rights protected by s. 2 of the

Charter must also fail.

[97] The constitutional right to freedom of expression has

been repeatedly interpreted in a broad and purposive manner.

Activity that conveys or attempts to convey meaning through a

non-violent method is prima facie under the umbrella of s.

2(b). The content of the meaning expressed or intended, that

is, the message intended or actually conveyed, cannot deprive

an activity of its expressive quality: Irwin Toy Ltd. v. Quebec

(Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No,

36, at pp. 967-71 S.C.R.; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697,

1990 24 (SCC), [1990] S.C.J. No. 131, at p. 729 S.C.R.; R. v. Zundel,

1992 75 (SCC), [1992] 2 S.C.R. 731, [1992] S.C.J. No. 70, at pp. 751-53

S.C.R.; Montreal (City) v. 2952-1366 Qu‚bec Inc., [2005] 3

S.C.R. 141, 2005 SCC 62, [2005] S.C.J. No. 63, at paras. 59-60.

[98] The broad reading of s. 2(b) reflects the fundamental

importance of the values that animate the right to freedom of

expression, both to the individual and to society as a whole.

Chief Justice Dickson identified those values in Keegstra, at

pp. 727-28 S.C.R.:

[T]he Court has attempted to articulate more precisely some

of the convictions fueling the freedom of expression, these

being summarized in Irwin Toy (at p. 976) as follows: (1)

seeking and attaining truth is an inherently good activity;

(2) participation in social and political decision-making

is to be fostered and encouraged; and (3) diversity in forms

of individual self-fulfillment and human flourishing ought to

be cultivated in a tolerant and welcoming environment for the

sake of both those who convey a meaning and those to whom

meaning is conveyed.

[99] Conduct that falls within the definition of "terrorist

activity" is, by definition, intended to convey a meaning. The

requirement that the conduct be performed for a political,

religious or ideological purpose means that the Crown must

prove that the activity was done in part, at least, to convey a

certain message or meaning: Ahmad, at paras. 100-101.

[100] Although the meaning conveyed by any given activity

cannot exclude that activity from the protection of s. 2(b),

expressive activity that takes the form of violence is not

sheltered under s. 2(b): R.W.D.S.U. v. Dolphin Delivery Ltd.,

1986 5 (SCC), [1986] 2 S.C.R. 573, [1986] S.C.J. No. 75, at p. 588 S.C.R.;

Irwin Toy, at pp. 969-70 S.C.R.; Keegstra, per Dickson C.J.C.

for the majority, at pp. 731-32 S.C.R., and per McLachlin J. in

dissent, at pp. 828-30 S.C.R.; [page355] Greater Vancouver

Transportation Authority v. Canadian Federation of Students --

British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, [2009] S.C.J.

No. 31, at para. 28.

[101] Violent activity, even though it conveys a meaning, is

excluded from s. 2(b) because violence is destructive of the

very values that underlie the right to freedom of expression

and that make this right so central to both individual

fulfillment and the functioning of a free and democratic

society. Expression conveyed through violent means coerces and

dissuades others from exercising their rights, including their

right to freedom of expression. The use of violence to convey

beliefs or opinions discourages others from testing the truth

of those beliefs or opinions, discourages participation in

social and political decision-making, and prevents others from

achieving individual self-fulfillment through the expression of

their own beliefs and opinions. To accord even prima facie

protection under s. 2(b) to expression conveyed through

violence is to undermine the very reason for the provision.

[102] The Supreme Court has not been called upon to set out

the exact parameters of the violence exception to the broad

meaning of expressive activity protected by s. 2(b). The

exception clearly reaches conduct that causes physical harm to

others. There is also substantial obiter dicta in the early s.

2(b) jurisprudence indicating that the violence exception

applied to threats of violence: see Irwin Toy, at p. 970

S.C.R.; Dolphin Delivery, at p. 588 S.C.R.; Reference re ss.

193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1

S.C.R. 1123, 1990 105 (SCC), [1990] S.C.J. No. 52, at p. 1182 S.C.R.; Rocket v.

Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R.

232, 1990 121 (SCC), [1990] S.C.J. No. 65, at p. 245 S.C.R. However, in

Keegstra, at p. 732 S.C.R., the majority held that only

"expression communicated directly through physical harm"

would be placed beyond the potential protection of s. 2(b). The

dissent, at p. 830 S.C.R., would have excluded "actual or

threatened physical interference with the activities of

others".

[103] While the majority in Keegstra appeared to hold that

threats of violence cannot be equated with violence for the

purpose of the s. 2(b) analysis, in two cases since Keegstra,

the majority of the Supreme Court has indicated in obiter

comments that threats of violence or other threatening actions

short of actual physical violence will not be treated as

expressive conduct for the purpose of s. 2(b): see Suresh v.

Canada (Minister of Citizenship and Immigration), [2002] 1

S.C.R. 3, 2002 SCC 1, [2002] S.C.J. No. 3, at paras. 107-108; Greater

Vancouver Transportation Authority, at para. 28. [page356]

[104] The case law from the Supreme Court has also not

defined "violence" in the context of the right to freedom of

expression. In dissent in Keegstra, at p. 830 S.C.R., McLachlin

J. referred with approval to a dictionary definition of

"violence" as meaning "[t]he exercise of physical force so

as to inflict injury on or damage to persons or property". More

recently, in R. v. D. (C.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J.

No. 79, at paras. 28-33, a case which did not involve s. 2 of

the Charter, the majority acknowledged that violence can have a

wide variety of meanings and could extend to physical harm done

to property in some contexts.

[105] The meaning of violence for the purpose of determining

forms of expression that will not be prima facie protected by

s. 2(b) is therefore an open question. In particular, we take

it as undecided whether violence can refer to physical harm to

property and whether violence includes conduct preliminary to

the actual infliction of physical violence, such as threats of

violence.

[106] In the extradition appeals, counsel for Nadarajah and

Sriskandarajah acknowledge that an act or omission that causes

any of the consequences described in s. 83.01(1)(b)(ii)(A)-(D)

constitutes violent activity and is not constitutionally

protected expression. They instead contend that the conduct

described in subsection (E) does not necessarily address

violent activity and is, therefore, potentially protected under

s. 2(b). The extradition judge rejected that argument (paras.

33-34). The argument was accepted, however, in Ahmad, at paras.

104-107.

[107] Dawson J. in Ahmad also held, at para. 106, that some

of the conduct that falls within the extending meaning of act

or omission in the definition of "terrorist activity" does not

amount to violent activity and is, therefore, potentially

protected under s. 2(b). Dawson J. observed, at para. 108, that

conspiracy, counselling and being an accessory after the fact,

all conduct captured within the meaning of act or omission,

does not necessarily involve violent activity.

[108] Neither the argument that the conduct in subsection (E)

is potentially protected by s. 2(b) nor the argument that

conduct ancillary to actual acts of violence is protected by s.

2(b) need be addressed to resolve the constitutional issue in

these appeals. First, subsection (E) is not engaged in these

appeals. Subsection (E) is directed at conduct that causes a

serious interference with or disruption of an essential

service, facility or system. It was not the Crown's case either

in this appeal or in the extradition appeals that the alleged

terrorist activity involved the kind of conduct described in

subsection (E). The prosecution relied on the definitions in

subsections (A)-(D). [page357]

[109] Second, even if the ancillary conduct described in the

definition, such as threats or conspiracies, is not excluded

from s. 2(b) as violent conduct, the conduct is not protected

by s. 2(b). As will be explained below, where, as here, it is

the effect rather than the purpose of the legislation that

limits expressive activity, the legislation will be found to

violate s. 2(b) only if the affected expression promotes the

values underlying the right to freedom of expression. The

ancillary conduct in this case does not do so.

[110] As it is unnecessary to address the arguments based on

the scope of the violence exception to decide this appeal or

the extradition appeals, we think those issues should be left

to a case where resolution is necessary to the outcome. In

taking that view, we follow the dicta 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 paras. 30-31, where in the course of

interpreting the anti-terrorism legislation, the Supreme Court

cautioned against attempts to interpret legislative provisions

that are not directly engaged on the facts before the court.

[111] Accordingly, we will not address the meaning of

subsection (E). We will also assume that at least some of the

conduct captured by the expanded meaning of act or omission in

the definition of "terrorist activity" is not violent conduct.

We move next to explain why even though the conduct is not

violent activity, it is not protected by s. 2(b).

[112] A legislative provision may limit freedom of expression

either through its purpose or by its effect. If the purpose is

to restrict expression that is prima facie protected by s.

2(b), the limit must be justified under s. 1 of the Charter:

Keegstra, at p. 733 S.C.R.; Zundel, at p. 758 S.C.R. However,

if the purpose is not to restrict expression, but the effect of

the legislation is to restrict expression, the legislation

limits the rights guaranteed under s. 2(b) only if the activity

limited by the legislation promotes at least one of the values

underlying the right to freedom of expression. These principles

are the pursuit of truth, participation in the community and

individual self-fulfillment: Irwin Toy, at pp. 976-77 S.C.R.

[113] Counsel do not submit that the purpose of the

legislation in Part II.1 of the Criminal Code is to restrict

freedom of expression or any other right guaranteed under s. 2.

Counsel in the extradition appeals do, however, contend that

the legislation has that effect.

[114] We agree that the purpose of the legislation is to

protect the community from the physical harm that will flow

from the conduct captured by the definition of "terrorist

activity". Section 83.01(1.1) [page358] makes it clear that the

purpose is not to limit expression. For convenience, we repeat

that provision:

83.01(1.1) For greater certainty, the expression of a

political, religious or ideological thought, belief or

opinion does not come within paragraph (b) of the definition

"terrorist activity" in subsection (1) unless it

constitutes an act or omission that satisfies the criteria in

that paragraph.

[115] Turning to the effect of the legislation, we can do no

better than refer to the analysis of Dawson J. in Ahmad, at

paras. 128-29. We adopt his analysis, which states in part:

[T]o the extent the "activity" in question falls outside the

violence exception and remains within the scope of s. 2(b)

protection, (for example because the mode of participation

does not involve actual violence), it nonetheless involves

actions taken in aid of a political, religious or ideological

objective, by means intended to cause the harmful effects

that clauses (A) to (E) of s. 83.01(1)(b)(ii) are aimed at,

with the intention to intimidate or compel action as

specified in s. 83.01(1)(b)(i)(B) of the definition. . . .

In my view, the expressive activity affected by the

legislation tends to undermine rather than support the values

upon which freedom of expression is based.

[116] We agree with Dawson J. that none of the conduct that

falls within "terrorist activity" involves expressive activity

that advances any of the values underlying s. 2(b). For

example, counselling someone to engage in conduct that would

cause death or serious bodily harm hardly encourages the

pursuit of truth, participation in the community or individual

self-fulfillment. Consequently, even if the activity is not

violent, it is not expressive conduct for the purpose of s.

2(b).

[117] In summary, none of the activity that falls within the

definition of "terrorist activity" is protected under s. 2(b)

for one of two reasons. First, some, if not all, of the conduct

involves the use of violence to convey a meaning. Second, to

the extent that the activity does not involve the conveying of

meaning through violence, it does involve the conveying of

meaning in a manner that is contrary to and destructive of the

principles underlying the right to freedom of expression. As

the purpose of the legislation is not to limit expression, the

fact that it has that effect, but only with respect to a form

of expression that is destructive of the principles underlying

freedom of expression, does not constitute an infringement of

s. 2(b).

(d) The "chilling effect" argument

[118] One would think that the conclusion that the phrase

"terrorist activity" does not capture conduct protected by

s. 2 would end the argument that any part of the definition

infringes the rights protected by s. 2. However, as outlined

above, the trial [page359] judge in the present case found a

violation of s. 2 of the Charter based on his conclusion that

the motive clause would inhibit persons who wished to engage in

conduct that is outside the definition of "terrorist activity"

from expressing certain beliefs and opinions that might be

shared by those who were engaged in terrorist activity. A

finding of unconstitutionality based on a collateral effect on

persons whose conduct is not within the terms of the statute

is, to our knowledge, unique to this case. The impact of

legislation on persons who are not directly "caught" by the

terms of the legislation is normally addressed in the context

of the proportionality analysis required by s. 1 of the

Charter: e.g., see Zundel, at pp. 771-72 S.C.R.; R. v. Sharpe,

2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, at para. 104.

Section 1, and the proportionality analysis required by it, is

of course engaged only after it is concluded that the

legislation breaches a constitutionally protected right.

[119] Even assuming that an indirect effect of a statutory

provision can render that provision unconstitutional, we reject

the trial judge's conclusion that the motive clause is

unconstitutional because it has a chilling effect on the rights

protected by s. 2 of the Charter. The problem with the trial

judge's view of the indirect effect of the impugned definition

is that it is founded entirely on speculation, both as to the

existence of the "chilling effect" and the cause or source of

that "chilling effect", if indeed one exists. The trial judge

simply declared that the "chilling effect" on the rights of

certain segments of our society to freely express themselves

was "the inevitable impact" of the inclusion of the motive

clause in the definition of "terrorist activity". In doing so,

he relied on similar declarations made by academic

commentators: see paras. 55-58.

[120] The "chilling effect" relied on by the trial judge to

declare the motive clause unconstitutional would presumably

fall upon those in the community who shared some of the views

associated with those who engaged in "terrorist activity", or

who shared the cultural or religious background of those

associated with "terrorist activity". Neither this appellant

nor the appellants in Nadarajah and Sriskandarajah led any

evidence to support the contention that individuals within any

part of the community felt constrained in the expression of

their beliefs or opinions by any part of the terrorism-related

provisions, much less specifically by the motive clause.

[121] The trial judge did not acknowledge the absence of any

evidence to support his crucial finding on the constitutional

question. He regarded the chill as self-evident and beyond

question. The extradition judge in Nadarajah, at paras. 37-42,

[page360] acknowledged the absence of any evidence to

support the "chilling effect" argument, but determined that it

was not fatal to that argument. In Ahmad, at paras. 130-35,

Dawson J. declined to make any finding of a "chilling effect"

in the absence of any evidence to support it.

[122] The appellant bears the onus of establishing the breach

of s. 2. Usually, although not always, evidence is required to

meet that onus. The anti-terrorism legislation has been in

place in Canada for almost ten years. Similar legislation

operates in several other countries. If the motive clause has

dampened freedom of expression in certain segments of the

community, as assumed by the trial judge, one would have

thought that the appellants would be able to produce, at the

very least, some credible anecdotal evidence to that effect.

One would also have thought that credible expert evidence would

be available.

[123] The trial judge did not suggest that he was taking

judicial notice of the "chilling effect" of the motive clause,

although that is what he did. Accepting that the scope of

judicial notice is broader in respect of non-adjudicative

social facts, such as the potential "chilling effect" of

legislation, judicial notice still requires that the fact of

which judicial notice is taken be one that is not open to

reasonable dispute after due inquiry. In R. v. Spence, [2005] 3

S.C.R. 458, 2005 SCC 71, [2005] S.C.J. No. 74, at para. 53, the Supreme

Court reaffirmed the exacting legal principles regarding

judicial notice as articulated by McLachlin C.J.C. in R. v.

Find, 2001 SCC 32, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, at para. 48:

Judicial notice dispenses with the need for proof of facts

that are clearly uncontroversial or beyond reasonable

dispute. Facts judicially noticed are not proved by evidence

under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice is strict: a

court may properly take judicial notice of facts that are

either: (1) so notorious or generally accepted as not to be

the subject of debate among reasonable persons; or (2)

capable of immediate and accurate demonstration by resort to

readily accessible sources of indisputable accuracy[.]

[124] The contention that a segment of the community is

reluctant to exercise its rights under s. 2 because of the

motive clause in the anti-terrorism legislation comes nowhere

near to meeting the standard required before judicial notice

can be taken. The appellants had the obligation to demonstrate

the "chilling effect" said to result in the infringement of s.

2 of the Charter. In our view, they could not do so without

adducing some evidence to support that contention. The absence

of evidence cannot be overcome by judicial speculation or

academic commentary. The "chilling effect" argument fails for

this reason alone. [page361]

[125] There is a second difficulty with the "chilling effect"

analysis. Even if one could assume or take judicial notice of

the fact that there is a segment of the community that is

reluctant to express its views because those views may be

associated in the public mind with "terrorist activity", the

motive clause would thereby be rendered unconstitutional only

if the appellants demonstrated a connection between that

reluctance and the motive clause. Dawson J. in Ahmad referred

to this difficulty, at para. 133:

The problem in the present case is that the cause and

effect relationship the applicants rely upon is not obvious.

I have no trouble concluding on a common sense basis that

some members of minority communities have experienced a chill

when it comes to the expression of their political, religious

or ideological views because they are concerned they may be

seen as extremist and singled out for scrutiny. Where I have

difficulty is in connecting such a chill to the motive

requirement. . . . It seems to me that any such chill could

simply be the result of the general state of our society in

the post "9/11" environment.

(Emphasis added)

[126] We agree with Dawson J.'s remarks. There are many

potential explanations for why people might feel a chilling

effect when it comes to expressing extremist Islamic views.

Perhaps, most obviously, there is the reality of the world we

live in. Terrorism and the fear and uncertainty terrorism

creates are facts of life. Fear can generate many things,

including suspicion based on ignorance and stereotyping. Many,

but by no means all, of the major terrorist attacks in the last

ten years have been perpetrated by radical Islamic groups

fuelled by a potent mix of religious and political fanaticism.

It is hardly surprising that, in the public mind, terrorism is

associated with the religious and political views of radical

Islamists. Nor is it surprising that some members of the public

extend that association to all who fit within a very broad

racial and cultural stereotype of a radical Islamist.

[127] In making these observations, we do not intend to

condone profiling or stereotyping. We do, however, mean to say

that the most obvious cause of any "chilling effect" among

those whose beliefs would be associated in the public mind with

the beliefs of terrorist groups is the temper of the times and

not a legislative provision that in all probability is unknown

to the vast majority of persons who are said to be "chilled" by

its existence: see Reference re Federal Courts Act, at para.

[128] Section 83.01(1.1) also stands in the way of any finding

that the motive clause has generated a "chilling effect" on

freedom of expression in certain segments of the community. To

reason that the motive clause causes an individual to be

reluctant [page362] to express an opinion or belief, one must

assume that that person is aware of the motive clause. If one

makes that assumption, one must, it seems to us, also assume

that the individual is aware of s. 83.01(1.1). That provision

clearly declares that one need not fear expressing any

political, religious or ideological belief as long as one does

not engage in conduct that falls within the meaning of

"terrorist activity". If assumptions are to be made about the

effect of legislation, those assumptions must be based on the

entirety of the relevant provision. [See Note 11 below]

[129] The respondent Crown makes the valid point that the

motive clause has virtually no effect on the manner in which

potential terrorist activities are investigated and prosecuted.

The vast majority of terrorist acts are borne of political,

religious and ideological motivations. Consequently, motive

will play a crucial role in the detection and prosecution of

terrorist activities. The investigative focus will fall on

persons or groups whose beliefs are known or believed to

promote or condone terrorist conduct. Where those

investigations lead to prosecutions, the motive of the accused

will no doubt be a central feature of the prosecution's case.

[130] The facts of this case present a good example. The

appellant's motive was the subject of considerable evidence. To

the extent that the "chilling effect" on freedom of expression

is the product of the targeting and prosecution of individuals

who have certain motives, that chill would exist regardless of

whether the motive clause was part of the definition of

"terrorist activity". In other words, it is the nature of

the activity and the nature of the state response that may

generate the "chilling effect", not the content of the

legislation.

[131] The irrelevance of the exact terms of the anti-

terrorism legislation to any potential "chilling effect" is

also supported by the absence of any evidence suggesting that

there is a distinction to be drawn between the countries where

motive is an element of the definition of "terrorist activity"

and countries where motive is not an element of that

definition. For example, there [page363] was no evidence

adduced in this case that the "chilling effect" said to exist

in Canada does not exist, or exists in any different way, in

the United States, where the anti-terrorism legislation does

not require proof of motive.

[132] The trial judge was concerned that the investigative

authorities, in the course of efforts to prevent and uncover

terrorist activities, would overstep their powers and in the

course of doing so, sweep within their investigative net

persons who had done nothing more than bear a religious,

cultural or racial resemblance to persons stereotyped by

authorities as terrorists. This was certainly an important and

proper concern.

[133] It is equally important, however, to distinguish

between proper and improper police conduct. If the police have

grounds to believe that someone is engaged in or associated

with "terrorist activity", they are not only entitled, they are

obliged, to investigate that person. Individuals who associate

themselves through their conduct or statements with the goals

or activities of terrorist groups can expect to be investigated

by the police even though it may turn out that those persons

have not engaged in any "terrorist activity". As long as the

police conduct their investigation in a lawful manner, any

"chilling effect" on those targeted by the investigation is

no basis upon which to find a Charter infringement.

[134] Improper police conduct, such as profiling based

exclusively on ethnicity or religious belief, is an entirely

different matter. This kind of state conduct is not only

unacceptable, it is unconstitutional. There is, however, no

evidence of any connection between these abuses and the motive

clause. Nor can improper conduct by the state actors charged

with enforcing legislation render what is otherwise

constitutional legislation unconstitutional. Where the problem

lies with the enforcement of a constitutionally valid statute,

the solution is to remedy that improper enforcement, not to

declare the statute unconstitutional: Little Sisters Book and

Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R.

1120, 2000 SCC 69, [2000] S.C.J. No. 66, at paras. 133-35.

[135] For these reasons, we are satisfied that the appellant

in this case and the appellants in the extradition appeals have

failed to show that the motive clause has caused any "chilling

effect" on the rights of those who do not engage in "terrorist

activity". We make one final point. It seems to us, although we

could perhaps be accused of the same speculation we have

attributed to the trial judge, that persons who are inclined to

express views that support some of the beliefs or goals (but

not the methods) of terrorist groups, might well be dissuaded

from openly expressing those views because of the terrorist

activities [page364] of those who hold similar views. A person

who would never engage in "terrorist activity" may refrain from

expressing a particular point of view for fear of being

identified with true terrorists who happen to share the same

belief. On this analysis, it is the actions of the terrorists

and not the legislation targeting their activities that creates

the "chill".

(iv) Conclusion on the constitutional arguments

[136] We agree with the Crown that the trial judge erred in

holding that the motive clause was unconstitutional and of no

force and effect. The constitutional remedy granted by the

trial judge was to sever the motive requirement in s. 83.01(1)

(b)(i)(A) of the definition of "terrorist activity". As a

result, the Crown was not required to satisfy this element of

the definition in seeking to obtain convictions on counts 1 to

[137] In view of our conclusion that the motive requirement

is not unconstitutional, the trial judge erred in granting the

remedy he did. However, that error is of no moment because, as

the trial judge observed, at para. 89 [2008 92005 (ON SC), [2008] O.J. No. 4244

(S.C.J.)], even if the motive requirement was an essential

ingredient of these offences, the Crown would have proved it

was established based on the evidence adduced against the

appellant:

I say that because there is such an abundance of evidence

that what was being done by Khawaja, Babar, Khyam, and his

associates was clearly motivated "in whole or in part for a

political, religious or ideological purpose, objective or

cause."

[138] Thus, we would not give effect to the s. 2

constitutional challenges to the definition of "terrorist

activity" raised by this appellant and by the appellants in

Nadarahaj and Sriskandarajah. We now consider the remaining

grounds of the conviction appeal in the present case.

(2) Alleged shift in the Crown's case

[139] In his opening address at trial, Crown counsel

described the nature of the Crown's case in these terms:

In late 2003 and early 2004, a terrorist group was plotting

to build and then detonate within the United Kingdom one or

more improvised explosive devices based on 600 kilograms of

ammonium nitrate-based fertilizer.

If an improvised explosive device based on 600 kilograms of

ammonium nitrate-based fertilizer were to be detonated in a

populated area, the result would be massive destruction and

loss of life. If parceled into separate bombs, the explosions

would cause similar destruction and loss of life distributed

over a wider area.

Possible targets discussed by members of the group included a

shopping mall in Kent, a nightclub in central London and the

high voltage electricity [page365] and high pressure gas

supply networks in England and Wales. The aim was to cause

death, injury and damage for religious and political

purposes.

[140] Further, Crown counsel described the offence charged in

count 7 -- the knowing facilitation of a terrorist activity --

as "knowingly facilitating a terrorist activity, namely the

fertilizer bomb plot undertaken by . . . a terrorist group in

the United Kingdom".

[141] The appellant claims that, based on this early

articulation of the Crown's case, the thrust of the defence

advanced at trial was to attempt to show that he knew nothing

about the U.K. fertilizer bomb plot and that his activities

were designed merely to further his desired participation in

the insurgency in Afghanistan.

[142] The appellant submits that, in response to this defence

strategy, the Crown improperly expanded the nature of its case

at the end of trial by alleging in closing submissions that the

terrorist activity underlying the offences charged "resided

within a greater common criminal design: violent Jihad wherever

it might opportunistically be committed". The appellant

contends that this constituted a material shift in the Crown's

case at a late stage of the trial, thereby compromising trial

fairness and occasioning a miscarriage of justice.

[143] We did not find it necessary to call on the Crown to

address this argument. Simply put, the appellant's contention

that the Crown impermissibly recast its case against him

ignores the basic distinction between formal particulars and

the prosecution's chosen theory of an accused's criminal

liability. As this court stated, at p. 286 O.R., in R. v. Groot

(1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, [1998] O.J. No. 3674 (C.A.), affd

1999 672 (SCC), [1999] 3 S.C.R. 664, [1999] S.C.J. No. 64:

It is important to distinguish between particulars under s.

587 of the Code and particulars of the theory of the Crown.

While the Crown is bound to prove formal particulars, subject

to the surplusage rule, particulars are distinguished from

the Crown's theory which it is not bound to prove.

See, also, R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No.

3479 (C.A.), at para. 134.

[144] More recently, a majority of the Supreme Court in R. v.

Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, [2010] S.C.J. No. 32, 2010 SCC

32, reiterated that the Crown has the right to modify its

theory or strategy as the trial progresses. Citing Binnie J.

(dissenting, but not on this point) in R. v. Rose (1998), 40

O.R. (3d) 576, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at

para. 27, the majority in Pickton noted, at para. 19: [page366]

The notion that it is sufficient for the accused to respond

to the "Crown theory of the case" also suffers from the

practical difficulty that the Crown's theory of the case is a

moving target that has to adjust to meet new or changing

circumstances during the trial, including what the Crown

hears in the defence closing address.

[145] Thus, in the absence of formal particulars regarding

the terrorist activity alleged, it would have been

unobjectionable for the Crown to adjust the theory of its case

in response to the evidence at trial as it evolved.

[146] In this case, Crown counsel's opening depiction of the

appellant's criminal conduct was not confined to his alleged

involvement in a fertilizer bomb plot, in London or elsewhere.

Early in his opening address, Crown counsel stated:

Throughout the years 2002, 2003 and until his arrest in 2004,

Khawaja participated in and contributed to the London

fertilizer bomb plot and other activities of the Omar Khyam

group by numerous e-mail exchanges and meetings, both in

London and Pakistan, with various associates of the terrorist

group.

(Emphasis added)

[147] It was therefore clear from the outset of trial that

the Crown's theory of liability was not centred exclusively on

a fertilizer bomb plot.

[148] Moreover, on the facts of this case, the defence cannot

be said to have been taken by surprise by the Crown's

contention that the appellant knowingly worked in concert with

terrorists to achieve commonly held terrorist aims. The record

confirms the Crown's assertion before this court that evidence

of the Khyam group's aims and of the appellant's desire "to

advance Jihad on all fronts" formed part of the Crown's case at

trial. There is no suggestion that the Crown's disclosure of

this evidence was inadequate or deficient.

[149] The appellant elected not to testify or lead any

evidence in answer to the Crown's case. Nor did he seek from

the Crown formal particulars of any of the offences charged. Of

course, had he done so, the Crown would have been bound to

prove any particulars provided. While the appellant was

entitled to make these tactical decisions, he cannot now

complain that he was denied the opportunity to know, and to

attempt to meet, the Crown's case as established by the

evidence actually led at trial.

[150] Finally, the authorities relied on by the appellant in

support of the proposition that the Crown cannot seek and

obtain a conviction on a different basis than is presented in

its case to the court -- R. v. Wynnychuk, [1962] A.J. No. 33,

1962 548 (AB SCAD), 132 C.C.C. 227 (C.A.); R. v. Pendleton, [1982] O.J. No. 132, 1

C.C.C. (3d) 228 (C.A.); and R. v. Motto, 2005 2051 (ON SC), [2005] O.J. No. 268,

2005 2051 (S.C.J.) [page367] -- do not assist him as

they have been overtaken by subsequent cases: see R. v. Drolet,

1988 1354 (QC CA), [1988] J.Q. no 2283, [1989] R.J.Q. 295 (C.A.), affd [1990] 2

S.C.R. 1107, 1990 40 (SCC), [1990] S.C.J. No. 101; and R. v. Pincemin, [2004]

S.J. No. 134, 2004 SKCA 33, [2005] 11 W.W.R. 55 (C.A.), at para. 35.

Additionally, the cases he relied on are distinguishable on the

facts. They involved trials in which the accused testified in

his own defence and admitted to committing the same or a

related offence, but on a different occasion than that in

regard to which the Crown called evidence in its case in chief:

see Motto, at para. 5; Wynnychuk, at pp. 228-29 C.C.C.;

Pendleton, at p. 230 C.C.C. That is not this case.

[151] This ground of appeal therefore fails.

(3) Armed conflict exception

[152] As we have said, at the close of the Crown's case, the

defence moved for directed verdicts of acquittal on all counts.

The defence sought to rely on the "armed conflict exception" to

the definition of terrorist activity set out in s. 83.01(1)(b)

(ii) of the Criminal Code as a complete answer to all the

offences charged. This exception excludes from the definition

of terrorist activity:

83.01(1)(b)(ii) . . . 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[.]

[153] The defence position was that the appellant's

activities were designed solely to further his desired

participation in and support of "armed conflict" in

Afghanistan. The defence maintained that the Crown bore the

evidential onus of establishing that the armed conflict

exception was inapplicable because the appellant's actions did

not comply with customary or conventional international law

applicable to the war in Afghanistan. As the Crown failed to

discharge this onus, the exception was engaged.

[154] The trial judge disagreed. He ruled that the armed

conflict exception was inapplicable and irrelevant in this

case, reasoning that the appellant was not part of an armed

force or involved in any armed conflict. He was of the view

that the exception found in s. 83.01(1)(b)(ii) of the

definition [2008 92005 (ON SC), [2008] O.J. No. 4244, 238 C.C.C. (3d) 114 (S.C.J.),

at para. 127]:

. . . applies to those actually engaged in armed combat. In my

view, the term "during" has the meaning of "in the course of"

and does not just mean "contemporaneously with," or "at the

same time as." The exception shields those who do acts while

engaged in an armed conflict that would otherwise fit the

definition of terrorist activity from prosecution as

terrorists [page368] as long as the acts are within the

internationally recognized principles governing warfare. Momin

Khawaja was not so engaged. His actions in Canada, in the U.K.

and in Pakistan cannot, in my view, be regarded as falling

outside the definition of "terrorist activity" by reference to

the "armed conflict" exception. [See Note 12 below]

[155] The trial judge also rejected the defence assertion

that the Crown was obliged to establish that the exception was

inapplicable based on evidence that the appellant's acts did

not accord with international law. He held, at para. 127:

"There is no burden on the prosecution to negative or

establish that the exception is inapplicable. It simply is

inapplicable to the facts of this case."

[156] In closing submissions at trial, the defence urged the

trial judge to revisit his earlier ruling that the armed

conflict exception did not apply. The trial judge acceded to

this request and again concluded that the exception was

inapplicable. In his reasons for judgment, he held that (1) the

appellant, Babar and members of the Khyam group were not

engaged in "armed conflict" within the meaning of that term

under the exception, and the exception did not extend to the

appellant's and the Khyam group's "non-combatant" activities;

(2) there was no armed conflict in Canada, the United

Kingdom or Pakistan, where the appellant's relevant acts were

carried out; and (3) in any event, through his various

activities, the appellant knowingly participated in and

supported a terrorist group, namely, the Khyam group (at paras.

128-32).

[157] Before this court, the appellant renews his argument

that the armed conflict exception applies to exempt his actions

from the ambit of "terrorist activity" as defined under the

Criminal Code. He submits that the exception was engaged at

trial because the Crown conceded on the directed verdicts

motion that the war in Afghanistan was a form of "armed

conflict" and that the insurgent fighting in that country

constituted "terrorist activity". Given these concessions, the

appellant says it was incumbent on the Crown to establish that

the exception was inapplicable based on evidence that his

impugned acts did not comply with international law governing

the conflict in Afghanistan.

[158] We reject this argument.

[159] We begin with the purpose of the armed conflict

exception. The exception is concerned with armed conflict in

the context of the rules of war established by international

law. It is [page369] designed to exclude activities sanctioned

by international law from the reach of terrorist activity as

defined in the Criminal Code. We agree with Sproat J.'s

observation in R. v. Y. (N.), [2008] O.J. No. 2069, 2008

24543 (S.C.J.), at para. 12, that "[t]he armed conflict

exception reflects the well recognized principle . . . that

combatants in an armed conflict, who act in accordance with

international law, do not commit any offence".

[160] The parties accept that, where shown to apply, the

exception operates much like a traditional defence. An accused

is entitled to have all defences put to a jury that are

realistically available on the evidence. As the Supreme Court

of Canada held in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002]

S.C.J. No. 28, at para. 50, per McLachlin C.J.C. and Bastarache

J.: "[A] defence should be put to a jury if and only if there

is an evidential foundation for it." The inquiry into whether

there is an evidential foundation for a defence is referred to

as the "air of reality test": Cinous, at para. 50; see, also,

R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, at

para. 29, per Charron J. The air of reality test applies to all

defences and all requisite elements of a defence. Consequently,

if evidential support for a necessary element of a defence is

lacking, the air of reality test is not met: Cinous, at paras.

57, 82; R. v. Ribic, 2008 ONCA 790, [2008] O.J. No. 4681, 238 C.C.C. (3d) 225

(C.A.), at para. 38.

[161] During oral argument before this court, the appellant

did not dispute that the air of reality test applies to the

armed conflict exception. Rather, he argued that the test was

satisfied by virtue of the Crown's concessions on the directed

verdicts motion, above-described.

[162] We disagree. The Crown did not concede on the directed

verdicts motion that the exception was implicated, but rather

maintained that there was no air of reality to the armed

conflict exception in this case. Indeed, the second

"concession" by the Crown, that the insurgent fighting in

Afghanistan constituted terrorist activity, dooms the

appellant's argument that the exception operated in this case.

[163] The relevant inquiry in respect of the exception was

whether there was anything in the evidence to suggest that the

appellant's activities (1) were undertaken while an armed

conflict was in progress, and (2) were in accordance with the

rules of war established by international law applicable to

that armed conflict. This is not a question of evidential onus.

It is a question of whether there was some evidential support

for the invocation of the armed conflict exception based on the

nature of the appellant's activities. [page370]

[164] On the directed verdicts motion, Crown counsel argued

that, in order for the exception to apply, the evidence must

establish that the appellant actually participated in the

theatre of war where the relevant armed conflict was underway.

The trial judge appears to have accepted this submission,

observing, at para. 128 of his reasons [2008 92005 (ON SC), [2008] O.J. No. 4244,

2008 92005 (ON SC), 238 C.C.C. (3d) 114 (S.C.J.)]: "There was no . . . armed

conflict in Canada, the United Kingdom or in Pakistan where the

acts with which Khawaja is charged, were carried out."

[165] On appeal, the Crown conceded that this narrow

construction of the exception is inappropriate. We agree. The

availability of the exception does not require proof of an

accused's physical presence in an area of armed conflict. Nor

does it contemplate that an accused's impugned acts or

omissions must be carried out within the territorial limits of

an area of armed conflict. As we have already said, all that is

required to trigger the exception is some evidence that (1) an

accused's acts or omissions were committed "during" an armed

conflict; and (2) those acts or omissions, at the time and at

the place of their commission, accorded with international law

applicable to the armed conflict at issue.

[166] This interpretive error, however, is of no moment.

There was simply no evidence in this case that the appellant

acted in accordance with international law or that the

hostilities by the insurgents in Afghanistan were undertaken in

compliance with international law. As the Crown succinctly

argued in its factum:

[T]here is not one iota of evidence in this case which

suggests that the Appellant has any inclination that laws of

war and [international humanitarian law] exist and what they

are, much less that he has the slightest desire or intention

to obey or observe these principles. Equally, as the

Appellant's counsel acknowledged, there was no evidence that

the "side" of the armed conflict he claimed to be supporting

behaved in any way consistently with international law.

[167] We agree with the Crown's submission that the

appellant's own e-mails belie any suggestion that he viewed the

violent Jihad that he espoused as lawful. Contrary to the

central tenets of international humanitarian law, he made no

distinction between civilians and soldiers or lawful

combatants. Indeed, his e-mails reveal that he supported the

indiscriminate and random murder of civilians, for instance, by

means of a suicide attack in a crowded public venue in Israel

or by terrorist attacks similar to those in the United States

on September 11, 2001.

[168] Moreover, the appellant's claim that his actions were

directed solely at supporting the insurgency in Afghanistan is

[page371] contradicted by the trial judge's unchallenged

factual findings. The trial judge [2008 92005 (ON SC), [2008] O.J. No. 4244, 238

C.C.C. (3d) 114 (S.C.J.)] expressly held, at paras. 130-31,

that the appellant knew of and supported the Khyam group's

terrorist objectives, which extended beyond Jihad-related

activities in Afghanistan:

. . . Momin Khawaja. . . knew that the group he was training

with [and] supporting. . . was far more than just a support

mechanism for front line armed combat in accordance with the

international rules of war. His knowledge extended to the

broader terrorist activity that the group had, in whole or in

part, as its purpose. Babar testified that they all shared an

appetite for violent Jihad. Khawaja . . . shared [the

group's] broad vision of economic terror throughout the

western world. . . . He shared its appetite for suicide

bombing in countries including Israel. . . . He was willing

to help in other ways, offering to do so on several occasions

and telling Khyam he was ". . . starting to work on a few

other much more sophisticated projects that can be of great

benefit to the J . . ." and would speak to Khyam about them

when they met.

In my view, there is ample evidence apart from the support

and preparation for violent Jihad with the Mujahideen in

Afghanistan or elsewhere, establishing that Momin Khawaja

knew he was dealing with a group whose objects and purposes

included activity that meets the Code definition of terrorist

activity.

(Emphasis in original)

[169] Thus, on the trial judge's findings, the armed conflict

exception was simply unavailable to the appellant.

(4) Judicial notice complaint

[170] The appellant complains that the trial judge erred in

determining whether the ulterior intention requirement in the

definition of "terrorist activity" set out in s. 83.01(1)(b)(i)

(B) of the Criminal Code had been satisfied by improperly

taking judicial notice of the geo-political situation in

Afghanistan and of international law. To repeat, under s.

83.01(1)(b)(i)(B), an act or omission is a "terrorist activity"

if it is committed:

(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 refrain from doing any act, whether the

public or the person, government or organization is inside or

outside Canada[.]

[171] With respect to this issue, the trial judge stated, at

para. 113, that he was "entitled to take judicial notice of at

least some aspects of the situation [in Afghanistan] by having

resort to certain notorious facts and to certain other facts

available from official United Nations documentation available

to all on the United Nations website

[http://www.un.org/documents/]; facts which I think are beyond

dispute among reasonable people". [page372]

[172] The trial judge proceeded to take judicial notice of

several facts, at paras. 124-25, which may be summarized as

follows:

-- the internationally recognized government of Afghanistan is

backed by a coalition of western nations, including Canada,

pursuant to various United Nations Security Council

Resolutions;

-- insurgents in Afghanistan are conducting armed warfare

against the coalition forces, the local government and that

part of the local population that supports them;

-- Canadian forces have sustained fatal casualties as a result

of insurgent fighting in Afghanistan; and

-- the purpose of the armed insurgent attacks is to intimidate

those assisting in or supporting the peaceful

reconstruction of Afghanistan and to compel those persons

to desist from those efforts.

[173] The trial judge did not err in concluding that these

skeletal and obvious facts about the basic nature of the

conflict in Afghanistan meet the test for judicial notice.

Contrary to the appellant's submission, they are notorious and

beyond dispute among reasonable persons. They are recited in

numerous United Nations Security Council Resolutions, some of

which were referenced both by the Crown and the appellant's own

counsel at trial, the factual accuracy of which is not

challenged on appeal.

[174] The trial judge's reasons reveal that he appropriately

employed a conservative approach to judicial notice. He

expressly refused to accede to the Crown's request that he take

judicial notice "of the unconventional and unprincipled nature

of the conduct of hostilities by the insurgent fighters in

Afghanistan" based on daily news reports of the deaths of

civilians and military personnel in Afghanistan (at para. 112).

He also declined to take judicial notice of facts regarding the

conduct of hostilities in Afghanistan from certain "specialist

publications" concerning the war in Afghanistan filed at trial

by the Crown (at para. 111).

[175] Beyond the notorious facts of which the trial judge

properly took judicial notice, there was also evidence in the

form of the appellant's own words that supported the trial

judge's finding that the ulterior intention requirement was

satisfied. In his e-mails, the appellant bluntly declared his

intention to "[bring] down the Kuffar enemy dealing blow after

blow, by whatever means available or necessary" in order to

"[force the Kuffar] to withdraw their troops, so they cannot

afford to wage war . . . . [page373] that they dare not worry

about attacking us or supporting others in attacking us". For

the appellant, the object of Jihad was to adopt "[a] war-like

mentality . . . against the Kuffar (governments, armies,

supporters) because they 'are' at war with us". These goals

fit squarely within the ulterior intention requirement of the

statutory definition of terrorist activity.

[176] Accordingly, we would not give effect to this ground of

appeal.

(5) Reasonableness of the verdicts on counts 3 to 7

[177] The appellant contends that the verdicts entered on

counts 3 to 7 are unreasonable for three reasons:

(1) the Crown premised its case on proof of the appellant's

knowledge of and involvement in the U.K. fertilizer bomb

plot, yet failed to establish that he knew of that plot;

(2) in the alternative, there is no evidence that the appellant

knew that the Khyam group was a "terrorist group" within

the meaning of that term under the Criminal Code; and

(3) in the further alternative, assuming that the activities in

Afghanistan facilitated by the appellant do not constitute

terrorist activity, the Crown failed to prove necessary

particulars in each of the individual counts.

[178] These arguments may be dealt with summarily. First, for

the reasons already set out, the Crown's case at trial did not

rest solely on proof of the appellant's knowledge of and

involvement in the U.K. fertilizer bomb plot. Moreover, nothing

in counts 3 to 7 or in the Crown's submissions at trial

confined the offences underlying those counts to activities in

relation to a fertilizer bomb plot.

[179] Second, the trial judge expressly found that the Khyam

group was a "terrorist group". The phrase "terrorist group" is

defined under s. 83.01(1) of the Criminal Code, in part, as

"(a) an entity that has as one of its purposes or activities

facilitating or carrying out any terrorist activity". This

finding was amply supported by the record.

[180] Critically, as we have already indicated, the trial

judge also found that the appellant was aware of the Khyam

group's terrorist objectives, that those objectives extended

beyond Jihad-related activities in Afghanistan and that the

appellant knowingly acted in support of those objectives.

[181] There was compelling and overwhelming evidential

support for these findings and for the trial judge's ultimate

holding [page374] that the appellant knowingly participated in

and supported a terrorist group consisting of Babar, Khyam,

Garcia, Amin, himself and others. That participation and

support included receiving training, providing money and

supplies, furnishing the use of a home in Pakistan,

constructing a remote detonator device with the intent that it

be used to trigger an explosion in London or elsewhere,

proposing to thereafter build 30 such devices and offering to

provide other assistance as needed by the terrorist group. We

have no hesitation in affirming the trial judge's conclusion

that these actions constituted terrorist activity.

[182] The verdicts on counts 3 to 7 are reasonable. There was

ample evidence at trial on which a properly instructed jury,

acting judicially, could reasonably have convicted on these

counts. The well-established test for a reasonable verdict is

therefore satisfied: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381,

2000 SCC 15, [2000] S.C.J. No. 16; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190,

2007 SCC 5, [2007] S.C.J. No. 5.

(6) Conclusion on conviction appeal

[183] For the reasons given, the conviction appeal is

dismissed.

II. The Sentence Appeals

(1) Introduction

[184] As already explained, the appellant was tried on an

indictment containing seven counts. He was found guilty as

charged on counts 3 to 7 and guilty of included offences on

counts 1 and 2. At the sentencing hearing, the trial judge

stayed count 2 in accordance with R. v. Kienapple, [1975] 1

S.C.R. 729, 1974 14 (SCC), [1974] S.C.J. No. 76. He entered convictions on the

remaining six counts. Those counts are identified in the chart

below, along with the maximum punishment available for each and

the sentence imposed by the trial judge:

[QL:GRAPHIC NAME="103OR3d321-4.jpg"/]

[page375]

[QL:GRAPHIC NAME="103OR3d321-5.jpg"/]

[page376]

[185] Totalling the various sentences, the appellant was

sentenced to 10 1/2 years in the penitentiary. This sentence was

in addition to the almost five years of pre-trial custody that

the appellant had served by the time of sentencing. At the

sentencing hearing, the defence had argued that the appellant

should receive credit for pre-trial custody on a 2:1 basis. The

trial judge refused to give effect to this request, noting, at

para. 45 of his reasons for sentence [2009 100210 (ON SC), [2009] O.J. No. 4279, 248

C.C.C. (3d) 233 (S.C.J.)], that a ten-year block of credit for

five years of pre-trial custody would not adequately denounce,

repudiate and punish the appellant's conduct. In the end, the

trial judge refused to specify a precise arithmetic formula for

assigning a value to the credit for time served. Rather, he

simply noted, at para. 47, that he took this period of pre-trial

custody into account in determining the sentences in this case.

[186] The appellant seeks leave to appeal against sentence

and requests that his sentence be reduced to time served. The

Crown also seeks leave to appeal against sentence by way of

cross-appeal and asks that the sentence be increased to life

imprisonment.

[187] For reasons that follow, we would grant leave to the

Crown, allow the cross-appeal and increase the sentence on

count 1 to life imprisonment. On that count, pursuant to s.

743.6(1) of the Criminal Code, we would order that the

appellant serve ten years before he may be released on full

parole. With respect to the remaining counts, we would impose

consecutive terms of imprisonment totalling 24 years, to be

served concurrently with the life sentence imposed on count 1.

The ancillary orders made by the trial judge shall remain the

same.

[188] In view of our disposition of the Crown's cross-appeal,

we would accordingly dismiss the appellant's application for

leave to appeal.

(2) Overview of the sentence appeals

[189] The trial judge provided clear and comprehensive

reasons for sentencing: 2009 100210 (ON SC), [2009] O.J. No. 4279, 248 C.C.C. (3d)

233 (S.C.J.). His task was not an easy one. Although he was

presented with sentencing precedents from around the world,

this was, as he observed [at para. 9], "the first sentencing

under Canada's Part II.1 Terrorism provisions", which contain

several sentencing provisions that apply specifically to

terrorist activity: see Appendix A to these reasons.

[190] The trial judge approached his task in an orderly and

coherent fashion. He applied traditional principles of

sentencing [page377] where appropriate and modified them as

necessary to give effect to the new terrorist sentencing

provisions as he understood them.

[191] Our reasons for interfering with the sentences he

imposed can be organized into two categories of concern. First,

the trial judge made three specific errors in his reasons for

sentence that warrant appellate intervention: (1) the trial

judge erred in assessing the appellant's level of

determination; (2) the trial judge erred in failing to treat

the absence of any evidence of the appellant's rehabilitative

prospects as a critical factor in sentencing; and (3) the trial

judge erred in interpreting s. 83.26 of the Criminal Code.

[192] Second, the trial judge erred in his overall approach

to sentencing the appellant. As we will explain, the sentencing

of terrorists requires particular regard to three critical

factors: (1) the unique nature of terrorism-related offences

and the special danger that these crimes pose to Canadian

society; (2) the degree of continuing danger that the offender

presents to society; and (3) the need for the sentence imposed

to send a clear message to would-be terrorists that Canada is

not a safe haven from which to pursue their subversive and

violent ambitions. In failing to properly apply these

considerations, the trial judge imposed a sentence that was

manifestly unfit.

(3) Three errors in the reasons for sentence

(i) The trial judge erred in assessing the appellant's

level of determination

[193] The Crown at trial submitted that the appellant should

receive a life sentence, just as Khyam and his associates had

received in England for their roles in the U.K. fertilizer bomb

plot: see Khyam, at para. 2. The trial judge refused to give

effect to the Crown's submission, stating, at para. 37 of his

reasons for sentence:

I am not persuaded that Momin Khawaja should be characterized

as a similar offender in similar circumstances as those

[Khyam's] men. He was a willing helper and supporter, but

Khyam [and his associates] were away out in front of Momin

Khawaja in terms of their determination to bring death,

destruction and terror to innocent people. In my view, Momin

Khawaja's offences, the circumstances in which they were

committed and his personal circumstances do not warrant his

being sentenced to life imprisonment.

(Emphasis added)

[194] Leaving the appellant's personal circumstances aside

for the moment, we are respectfully of the view that the trial

judge's finding that Khyam and his associates "were away out in

front" of the appellant "in terms of their determination to

bring death, [page378] destruction and terror to innocent

people" is not borne out by the record. On the contrary, the

record attests not only to the depth of the appellant's

commitment to violent Jihad, but also, as his e-mails show, his

willingness to do anything and go anywhere to promote violent

Jihad. He was eager to get on with the job and displeased that

things were not moving as quickly as he would have liked. He

was obsessed with the cause, fanatic in his determination to

establish Islamic dominance, seemingly at any cost, and eager

to assist in bringing about the destruction of western culture

and civilization.

[195] The trial judge was not unaware of these features of

the evidence. At paras. 130-31 of his reasons for convicting

the appellant [2008 92005 (ON SC), [2008] O.J. No. 4244, 238 C.C.C. (3d) 114

(S.C.J.)], he summarized the nature and extent of the

appellant's involvement with Khyam and his supporters. The

trial judge's salient findings about the appellant's

aspirations in providing the Khyam group with financial and

other support, including his efforts to build remote detonator

devices to enable the group to detonate IEDs, are as follows:

-- the appellant knew that the group he was training with,

supporting, helping to finance, providing a residence in

Rawalpindi to, transporting supplies for, offering to train

in electronics, offering to buy equipment for, offering to

help with other projects, and building triggering devices

to enable to remotely detonate IEDs for, shared an appetite

for violent Jihad;

-- the appellant was aware that the group's activity included

guerrilla and sniper training and sending its members to

different parts of the world to engage in violent Jihadist

activities;

-- the appellant shared the group's broad vision of economic

terror throughout the western world and he shared its

appetite for suicide bombing in countries including Israel;

-- the appellant told Khyam he was "startin to work on a few

other much more sophisticated projects that can be of great

benefit to the J. . ."; and

-- the appellant's most tangible and visible facilitation of

the group's terrorist activity was his work in developing

the hifidigimonster, which was intended to serve as the

remote trigger for an IED; he agreed to build about 30 of

them. [page379]

[196] In light of those findings, we fail to see on what

basis the trial judge was able to differentiate the appellant's

level of determination to bring about death and destruction

from that of Khyam and his terrorist followers. In fairness to

the trial judge, perhaps he was merely saying that Khyam and

his followers were further along in terms of realizing their

violent plans. But if that is what he meant, we do not consider

the distinction to be significant. The fact that the appellant

may have lagged behind his co-conspirators in this regard does

not speak to his level of determination, nor does it attenuate

the degree of his moral blameworthiness.

(ii) The trial judge erred in not treating the absence

of evidence of the appellant's rehabilitative

prospects as a critical factor

[197] The trial judge recognized, at para. 25 [[2009] O.J.

No. 4279, 2009 100210 (ON SC), 248 C.C.C. (3d) 233 (S.C.J.)], that, in cases

involving terrorist activity, "denunciation, deterrence, both

personal and general, and protection of society must weigh

heavily in the sentencing process". At the same time, he

observed, at para. 26, that "the potential for rehabilitation

and promotion of a sense of responsibility on the part of the

offender cannot be overlooked".

[198] The question of reformation presented a problem in the

appellant's case because, as the trial judge remarked, at para.

27:

[T]he Court knows virtually nothing about his potential for

reformation, of any sense of responsibility or of any remorse

he may feel for his criminal conduct, or of the likelihood of

his re-offending. The only words heard from him throughout

these proceedings were his pleas of "not guilty" when

arraigned and his answer "no" when asked if he wished to say

anything before I determined what sentences to impose. The

purpose of a pre-sentence report is to provide information

about an offender, including as to his "maturity, character,

behavior, attitude, and willingness to make amends." This

would assist the court in imposing sentence. Neither Momin

Khawaja nor his parents were willing to be interviewed in the

course of the preparation of the court-ordered pre-sentence

report, and so it was of limited value.

[199] After observing that he was at a loss to know what to

make of the dearth of information about the appellant's

prospects for rehabilitation, the trial judge effectively

treated this absence of information as a neutral factor in the

sentencing process, stating, at para. 29:

While I cannot regard this silence, this dearth of

information as an aggravating factor, it can lead to only one

inference, and that is that there is nothing that can be said

on behalf of Momin to lend weight to the mitigating factors

relating to his rehabilitation, including his taking

responsibility for his actions, making amends, feeling

remorse or determination not to re-offend. [page380]

[200] With respect, by treating this lack of evidence at the

sentencing hearing in this manner, the trial judge fell into

serious error. Far from being a neutral factor, the absence of

any evidence of the appellant's remorse or of his prospects for

reformation should have been treated as a significant indicator

of his present and future dangerousness. Absent convincing

evidence that he no longer subscribed to violent Jihad at the

time of sentencing (evidence the appellant could have led

without compromising his conviction appeal), the trial judge

ought to have found that the appellant continues to pose a

serious threat to society and is likely to do so for the

indefinite future. In the absence of any evidence of

rehabilitation, there was no reason to conclude that the

appellant would not engage in terrorist activity again if given

the opportunity to do so. The trial judge should have viewed

him in that light and sentenced him accordingly.

[201] We add this observation. Consideration of an offender's

prospects for rehabilitation is a relevant factor on sentencing

even in terrorism cases. That said, the import of

rehabilitation as a mitigating circumstance is significantly

reduced in this context given the unique nature of the crime of

terrorism and the grave and far-reaching threat that it poses

to the foundations of our democratic society: see our reasons

in R. v. Khalid [[2010] O.J. No. 5475, 2010 ONCA 861] released

concurrently with these reasons.

[202] The important point in this case is that there is

simply no evidence at all of any rehabilitative potential on

the part of the appellant. On the contrary, the evidence

established that this is a man who had written that he

"wish[ed] to be with the Mujahideen in the front-lines of

Jihad"; who described 9/11 as "the most accurate, effective,

and honorable way of conducting economic [Jihad]" and who wrote

"imagine if there were 10 Sept 11's, wouldn't that

accurately bring America down, never to rise again? Yes, I

understand that innocent human beings died, but there is

absolutely no other way of achieving the same objective with

the same effect."

[203] In cases like this, where an offender has shown a

willingness to participate in the indiscriminate killing of

innocent civilians and there are good grounds for believing

that he or she is likely to remain a serious danger for an

indeterminate time, the need to segregate such offenders from

society for society's protection must be the predominate

purpose of any sentence. And it is in that sense that the trial

judge failed to accord appropriate weight in the sentencing

process to the absence of any evidence of the appellant's

prospects for rehabilitation. [page381]

(iii) The trial judge erred in interpreting s. 83.26 of

the Criminal Code

[204] Section 83.26 of the Criminal Code is one of the new

provisions that Parliament enacted for offences involving

terrorist activity. It reads in part as follows:

83.26 A sentence, other than one of life imprisonment,

imposed on a person for an offence under any of sections

83.02 to 83.04 and 83.18 to 83.23 shall be served

consecutively to

(a) any other punishment imposed on the person, other

than a sentence of life imprisonment, for an

offence arising out of the same event or series of

events;

[205] That provision clearly applied in this case. The

appellant was being sentenced for six offences arising out of

the same series of events, five of which came within the

purview of s. 83.26.

[206] While the trial judge recognized that s. 83.26 applied

in the appellant's case, his reasons show that he had

difficulty harmonizing it with s. 718.2(c) of the Criminal

Code, which reads as follows:

718.2 A court that imposes a sentence shall also take into

consideration the following principles:

(c) where consecutive sentences are imposed, the

combined sentence should not be unduly long or

harsh.

[207] The trial judge addressed the potential conundrum

created by the two provisions, at para. 39 [of [2009] O.J. No.

4279, 238 C.C.C. (3d) 233 (S.C.J.)]: "Accordingly, the

sentences I impose must be consecutive terms. At the same time,

however, in light of s. 718.2(c) I must ensure that in their

totality, they are not unduly long or harsh" (emphasis in

original).

[208] The trial judge indicated that he felt constrained by

the totality principle described by Lamer C.J.C. in R. v. M.

(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para.

42, which "requires a sentencing judge who orders an offender

to serve consecutive sentences for multiple offences to ensure

that the cumulative sentence rendered does not exceed the

overall culpability of the offender". As noted by Lamer C.J.C.

at para. 43: "Whether under the rubric of the 'totality

principle' or a more generalized principle of proportionality,

Canadian courts have been reluctant to impose single and

consecutive fixed-term sentences beyond 20 years."

[209] Faced with this seeming dilemma, the trial judge

imposed modest sentences on counts 1, 3, 4 and 5 and token

sentences on counts 6 and 7. He did so presumably in the belief

that [page382] s. 83.26 speaks to the form the sentences are to

take rather than their overall length, which is to remain

within the customary upper range.

[210] With respect, we have difficulty with the trial judge's

interpretation of s. 83.26. That interpretation effectively

neutralizes the provision and instead endorses a "business as

usual" approach to the sentencing of terrorists. In our view,

s. 83.26 reflects Parliament's intention that the general

principle of totality must be moderated or altered in the case

of terrorism-related crimes. This provision signals that, when

offenders are convicted of a number of such crimes, total

sentences will be higher than they otherwise would be, and the

customary upper range for consecutive fixed-term sentences will

not be applicable.

[211] In this regard, we note that in the realm of

conventional offences, a practice has developed in this country

whereby sentences in the range of 15 to 20 years have become

the default position where it is felt that a life sentence is

unwarranted. That, however, is a matter of custom, not

principle. Indeed, the custom was soundly rejected as a matter

of principle in M. (C.A.), the very case that the trial judge

cited in support of treating s. 83.26 as essentially cosmetic

in nature.

[212] In M. (C.A.), at para. 53, Lamer C.J.C. defined the

core issue in the appeal before him as follows:

The core issue in this appeal concerns whether or not

Parliament intended fixed-term sentences under the Code to

generally be limited to 20 years' imprisonment, whether as a

sentence for a single offence where life imprisonment is

available but unwarranted, or as a sentence for multiple

offences involving consecutive terms of imprisonment.

[213] At para. 54, the Chief Justice set out the principal

argument advanced by the proponents of a 20-year ceiling:

The central argument advanced by the proponents of such a

ceiling is that Parliament, by fixing the default parole

ineligibility period for any numerical sentence beyond 20

years (absent an order under s. 741.2) at seven years,

implicitly intended to cap numerical sentences at 20 years.

Given the fact that an offender sentenced to 30 or 40 years

is still eligible for full parole at seven years, the

suggestion is that Parliament saw little utility in such

lengthy terms of imprisonment.

[214] At para. 56, Lamer C.J.C. responded to that argument as

follows:

With the greatest respect, I find no evidence in either the

Code or the Corrections Act that Parliament intended to

constrain a trial judge's traditionally broad sentencing

discretion through the imposition of a qualified legal

ceiling on numerical sentences pegged at 20 years'

imprisonment. Rather, in my reading of both statutes, beyond

setting statutory maximum and minimum sentences which reflect

the relative severity of different offences, Parliament

intended to vest trial judges with a wide ambit of [page383]

authority to impose a sentence which is "just and

appropriate" under the circumstances and which adequately

advances the core sentencing objectives of deterrence,

denunciation, rehabilitation and the protection of society.

Accordingly, in my view, whether or not life imprisonment is

available as a maximum sentence in the particular case, there

is no pre-set ceiling on fixed-term sentences under the Code.

(Emphasis added)

[215] In the course of his analysis, Lamer C.J.C. reviewed

the origins of our modern-day parole system and observed that

the granting of parole does not reduce an offender's sentence,

but merely changes the location where it is to be served. At

para. 62, he stated:

The offender remains under the strict control of the parole

system, and the offender's liberty remains significantly

curtailed for the full duration of the offender's numerical

or life sentence. The deterrent and denunciatory purposes

which animated the original sentence remain in force,

notwithstanding the fact that the conditions of sentence have

been modified. The goal of specific deterrence is still

advanced, since the offender remains supervised to the extent

and degree necessary to prevent possible crime, and since the

offender remains under the shadow of reincarceration if he or

she commits another crime. As well, the goal of denunciation

continues to operate, as the offender still carries the

societal stigma of being a convicted offender who is serving

a criminal sentence.

(Emphasis added)

[216] With respect to minimum periods of parole ineligibility

such as those established in s. 120(1) of the Corrections and

Conditional Release Act, S.C. 1992, c. 20 (the lesser of

the sentence or seven years), the Chief Justice observed, at

para. 64, that in fixing such periods, "Parliament seems to

have concluded that a minimum period of physical confinement

was necessary to advance the causes of general deterrence and

denunciation even if the offender was completely rehabilitated

and posed absolutely no threat to society at the time of

sentence" (emphasis added). While recognizing that the seven-

year default period under s. 120(1) of the Corrections and

Conditional Release Act constituted the period of physical

confinement that Parliament considered necessary to vindicate

the principles of deterrence and denunciation, Lamer C.J.C.

emphasized, at para. 65, that

there is no indication that the default parole ineligibility

rules exhaust a court's ability to advance the goals of

deterrence, denunciation, rehabilitation and the protection

of society through the imposition of a numerical sentence

beyond 20 years. Even though the conditions of the offender's

term of imprisonment may be subject to change after seven

years, the interaction of well-accepted sentencing principles

could still require that the offender remain under the

supervisory aegis of the parole system (if not under

imprisonment) for well beyond 20 years.

(Emphasis in original) [page384]

[217] In the end, at para. 72, Lamer C.J.C. "decline[d] to

delineate any pre-fixed outer boundary to the sentencing

discretion of a trial judge" and he saw "no reason why

numerical sentences in Canada ought to be de facto limited at

20 years as a matter of judicial habit or convention". He

recognized, at para. 73, that, for "many of the lesser crimes

presently before our courts", sentences beyond 20 years would

be "grossly excessive, and probably cruel and unusual".

However, he also noted that "in other circumstances, such a

stern sentence would be both fitting and appropriate" (emphasis

added).

[218] We have reviewed M. (C.A.) at some length because, in

our view, it helps shed light on Parliament's purpose in

enacting s. 83.26. In short, we believe that in enacting that

provision, Parliament intended to send a message that terrorism

is a crime that warrants special consideration and it is to be

treated differently for sentencing purposes. Parliament could

have evidenced this intention in a variety of ways as, for

example, by legislating minimum sentences for terrorist

activity. By enacting s. 83.26, it chose to signal its intention

by mandating the imposition of consecutive sentences for

terrorism offences that are not punished by a life sentence.

[See Note 13 below] If giving effect to this intention means

imposing sentences of more than 20 years in some instances where

a life sentence is either unavailable or unwarranted, trial

judges should not feel constrained from doing so by reason of a

20-year fixed ceiling custom that has no foundation in

sentencing principles or policy.

[219] This view of s. 83.26 fits with the approach we believe

should be taken in the sentencing of terrorists. Specifically,

where the terrorist activity, to the knowledge of the offender,

is designed to or is likely to result in the indiscriminate

killing of innocent human beings, trial judges should consider

very stiff sentences, including life imprisonment. And in those

cases where a life sentence is found to be inappropriate, trial

judges should determine the appropriate length of sentence

having regard to the special sentencing provisions in the

Criminal Code applicable to terrorism offences, the unique

nature of terrorism-related crimes and the enormity of the

offence or offences at hand. This process will often result in

sentences that are beyond the 15- to 20-year range that the

courts have traditionally imposed in respect of serious crimes

where a life sentence is not warranted. [page385]

[220] In advocating this sentencing approach to terrorist-

related activity that, to the offender's knowledge, is

designed to or is likely to result in the indiscriminate

killing of innocent human beings, we are not suggesting that

there will never be cases of that nature for which the

appropriate sentence will be within or below the 15- to 20-year

customary range. For example, full and meaningful co-operation

by the offender with law enforcement authorities in the

detection of terrorists and terrorist activity may well

alleviate against the imposition of longer than customary

sentences. Such co-operation is always significant for

sentencing purposes and particularly so in the case of

terrorist-related crimes. By their nature, such crimes tend to

be shrouded in secrecy and usually involve numerous people

acting at different times, different places and in different

ways. The heads of such conspiracies will generally be

difficult to detect. Some may reside in foreign jurisdictions.

Information from those lower down in the chain may prove

invaluable to the authorities and lead to the capture of such

individuals before they can perpetrate atrocities.

[221] Co-operation is but one example of the type of

mitigating conduct that may alleviate against the imposition of

longer than customary sentences in terrorism cases. We use it

to emphasize the fundamental principle that sentencing remains

a highly individual process and that the punishment imposed

must be proportional to the overall culpability of the

offender: see M. (C.A.), at para. 73. For this reason, trial

judges retain discretion, even in terrorism cases, to impose

lighter sentences in appropriate circumstances. That said, it

will be the rare case where lighter sentences are imposed on

offenders who knowingly engage in terrorist activity that is

designed to or is likely to result in the indiscriminate

killing of innocent human beings. As indicated, in those cases,

life sentences or sentences exceeding 20 years will generally

be appropriate.

[222] As we shall explain, there are many reasons why long

fixed-term sentences exceeding 20 years may be warranted in

terrorism cases. These include the horrific nature of the crime

and the need to let would-be terrorists know that they will pay

a heavy price if they choose to pursue their deadly activities

in Canada. Beyond those factors, there is much to be said for

keeping those who have shown a willingness to engage in the

indiscriminate killing of innocent civilians under the aegis of

the parole system, if not in prison, for well beyond 20 years.

[223] The trial judge did not follow this approach, either in

his interpretation of s. 83.26 or in fashioning the global

sentence. [page386] These errors contributed to the imposition

of a sentence which we believe was manifestly unfit.

[224] Having identified three specific errors in the reasons

for sentence, we now propose to turn to the larger picture and

explain why the sentence imposed by the trial judge was

manifestly unfit.

[225] Before doing so, however, we feel obliged to comment

briefly on one further aspect of the trial judge's reasons for

sentence that requires clarification.

(4) The trial judge's "amateurish efforts" comment

[226] The trial judge referred to the appellant's efforts to

perfect the hifidigimonster as "amateurish". At para. 33 of his

reasons for sentence [2009 100210 (ON SC), [2009] O.J. No. 4279, 248 C.C.C. (3d) 233

(S.C.J.)], he said:

As well, it was apparent that Momin and his brother Qasim

lacked expertise in their effort to perfect the

hifidigimonster. Sgt. Fiset said it was an amateurish effort.

The device, as seized, would not do the job, although it

would take only minor modifications to change that. There

were several cases referred to by counsel in which,

fortunately, amateurish efforts by seriously intended

terrorists, resulted in explosive devices failing or in one

or more instances blowing up prematurely such that the lives

of innocent victims were spared. That Momin Khawaja's efforts

may have been amateurish and terminated before they were

completed is hardly mitigation of the seriousness of his

criminal intent.

[227] Although the trial judge stated that he did not regard

the "amateurish" nature of the appellant's efforts as

mitigating the seriousness of his intent, there has been some

suggestion that the trial judge treated the appellant's lack of

expertise as a mitigating factor: see, for example, R. v.

Khalid (September 3, 2009), Brampton (2025/07) (Ont. S.C.J.),

at para. 119; and R. v. Namouh, 2010 QCCQ 943, [2010] Q.J. No. 1158, 74 C.R.

(6th) 376 (C.Q. (Crim. & Pen. Div.)), at paras. 50 and 57.

Hence the need to provide clarification. (For a case in which

the sentence was mitigated where the plot in question was

"amateurish", in the sense that the expected result "would

never have occurred in practice", see R. v. Barot, [2007] EWCA

Crim. 1119 (C.A. (Crim. Div.)), at para. 29. We express no

opinion on the principle applied by the court or the sentence

imposed in that case.)

[228] In this case, the RCMP seized the hifidigimonster

device and a photograph showing a detonator device from the

appellant's home. According to Sergeant Fiset of the RCMP, the

Crown's expert on explosive devices, the seized device was non-

functional as a triggering device for an IED due to a design

flaw; however, with modifications, it could be made to function

effectively. Sergeant Fiset also testified that the

hifidigimonster [page387] as photographed was capable of

detonating an explosion in the field.

[229] The fact that the detonator as seized may have required

some minor modifications to become functional is in our view

irrelevant on sentencing. Terrorists who are caught in the

preparatory stage may often appear to be amateurish; in those

cases where the same plans have been carried out, they appear

to be anything but amateurish. The characterization

"amateurish" does not lessen the threat.

(5) The trial judge erred in his overall approach to

sentencing and imposed a sentence that is manifestly

unfit

(i) The sentence does not reflect the unique nature of

terrorism-related offences

[230] The appellant was an active member of a terrorist group

whose singular goal was to eradicate western culture and

civilization and establish Islamic dominance wherever possible.

He was prepared to go anywhere and do anything for the violent

Jihadist cause. At the time of his arrest, he was in possession

of a prototype remote detonator device and had promised to

build 30 more such devices for the Khyam group. As found by the

trial judge, at para. 32 [2009 100210 (ON SC), [2009] O.J. No. 4279, 248 C.C.C. (3d)

233 (S.C.J.)], this device was "intended to unleash fireworks

at other as yet unspecified places in aid of the jihad". The

appellant was a willing participant in activity that he knew

was likely to result in the indiscriminate killing of innocent

human beings on a potentially massive scale. It is hard to

imagine a more odious inchoate crime.

[231] To be sure, terrorism is a crime unto itself. It has no

equal. It does not stop at, nor is it limited to, the senseless

destruction of people and property. It is far more insidious in

that it attacks our very way of life and seeks to destroy the

fundamental values to which we ascribe -- values that form the

essence of our constitutional democracy.

[232] Much has been written about the features of terrorism

that distinguish it from other crimes and place it in a

category of its own. In R. v. Elomar, [2010] NSWSC 10, 264

A.L.R. 759 (Aus. N.S.W.S.C.) -- an Australian case bearing many

similarities to the present case -- Whealy J. made the

following observations about terrorism, at para. 63:

The mindset evinced by all this [extremist] material may be

summarised as follows: First, a hatred of the "KUFR", that is

those Muslims and non-Muslims who did not share their

extremist views. Second, an intolerance towards the

democratic Australian Government and its policies. Third, a

[page388] conviction that Muslims are obligated by their

religion to pursue violent jihad for the purposes of

overthrowing liberal democratic societies and to replace them

with Islamic rule and Sharia law. This criminal enterprise

was not in any sense motivated, as criminal activities so

often are, by a need for financial gain or simply private

revenge. Rather, an intolerant and inflexible fundamentalist

religious conviction was the principle motivation for the

commission of the offence. This is the most startling and

intransigent feature of the crime. It sets it apart from

other criminal enterprises motivated by financial gain, by

passion, anger or revenge.

(Emphasis added)

[233] In Khalid, Durno J. referred to terrorist offences in

these terms, at para. 108:

Terrorist offences are a most vile form of criminal conduct.

. . They attack the very fabric of Canada's democratic

ideals. Those involved live by a philosophy that rejects the

democratic process. Their motivation is unique and

fundamentally at odds with the rule of law. It is an offence

that has an enormous impact on the public. Their object being

to strike fear and terror into the citizens in a way not seen

in other criminal offences.

(Emphasis added)

[234] In R. v. Amara, [2010] O.J. No. 181, 2010 ONSC 441,

Durno J. described, at paras. 102 and 104, the catastrophic

consequences that would have followed had the terrorists in

that case succeeded in their plot to blow up the two buildings

they had targeted in downtown Toronto:

[T]here is no dispute that what would have occurred was

multiple death and injuries. On the timetable indicated in

the facts with detonation occurring at 9 a.m., the impact

would have been magnified as workers arrived for work. With

one ton bombs at each location, the results would have been

catastrophic. What this case revealed was spine-chilling. I

agree with Mr. Lacy that the potential for loss of life

existed on a scale never before seen in Canada. It was almost

unthinkable without the suggestion that metal chips would be

put in the bombs. Had the plan been implemented it would have

changed the lives of many, if not all Canadians forever.

This was not an offence that would just impact on those who

were injured or killed and their families and friends. This

type of offence, even when it is stopped before the plans are

implemented, impacts throughout Canada.

(Emphasis added)

[235] As already noted, the terrorism provisions contained in

Part II.1 of the Criminal Code were introduced as part of the

Anti-terrorism Act found in Bill C-36. Before the Special

Senate Committee considering Bill C-36 (Senate of Canada,

Proceedings of the Special Senate Committee on the Subject

Matter of Bill C-36, 1st Sess., 37th Parl., No. 1 (October 22,

2001), at p. 1:25), the Minister of Justice made the following

observations about terrorism and terrorism-related crimes:

[page389]

Before I speak specifically about the different elements of

the bill, I would like to discuss with you the justification

for a bill like this. As many honourable senators know,

currently in the Criminal Code we have hijacking, sabotage

and murder offences. While those remain available to us,

terrorism is a special threat to our way of life, and it is

with this in mind that Bill C-36 focuses on acts of

terrorism. As the Prime Minister stated in the House: It has

become clear that the scope of the threat that terror poses

to our way of life has no parallel.

(Emphasis added)

[236] And finally, in the recent report on the Air India

tragedy (see Commission of Inquiry into the Investigation of

the Bombing of Air India Flight 182, Air India Flight 182: A

Canadian Tragedy, vol. 1 (Ottawa: Public Works and Government

Services Canada, 2010), at p. 159), the Honourable John Major

summed up succinctly the characteristics of terrorism that

distinguish it from other crimes: "Terrorism is an existential

threat to Canadian society in a way that murder, assault,

robbery and other crimes are not. Terrorists reject and

challenge the very foundations of Canadian society."

[237] The trial judge in the instant case recognized that the

appellant's crimes were very serious. He accepted, at para. 25

[2009 100210 (ON SC), [2009] O.J. No. 4279, 248 C.C.C. (3d) 233 (S.C.J.)], that

denunciation, deterrence and protection of society "must weigh

heavily in the sentencing process". He also noted that

"sentencing in cases of terrorist activity must strongly

repudiate activity that undermines our core values".

[238] We agree with those sentiments. Respectfully, however,

we think that the sentence imposed on the appellant fails to

reflect the enormity of his crimes and the horrific nature of

the crime of terrorism itself. Terrorism, in our view, is in a

special category of crime and must be treated as such. When the

terrorist activity, to the knowledge of the offender, is

designed to or is likely to result in the indiscriminate injury

and killing of innocent human beings, sentences exceeding 20

years, up to and including life imprisonment, should not be

viewed as exceptional. That may not be the traditional approach

to sentencing, but it is the approach we believe must be taken

to repudiate and deter terrorism and denounce it for the

insidious crime it is.

(ii) The sentence fails to adequately reflect the

continuing danger that this offender presents to

society

[239] We have already explained why, in our view, the

appellant remains a continuing danger to society and will

continue to be so for the indefinite future. The record

reflects a complete absence of contrition or remorse. As such,

the appellant remains a serious threat to the security of the

state. The trial judge failed [page390] to take this into

account. Had he done so, we believe he would have imposed a

life sentence.

[240] In Khyam, at para. 145, Sir Igor Judge considered and

rejected a submission advanced by several of the defendants

that an indeterminate or discretionary life sentence was

inappropriate and wrong in principle:

These submissions are unrealistic. Each of the Applicants was

a highly dangerous man willing to participate in the

infliction of wholesale death and destruction. But for the

intervention of the security services, their common

objectives would have been achieved. They represent a

continuing danger, and will continue to do so for the

indefinite future. In each case a discretionary life sentence

was inevitable and rightly imposed.

(Emphasis added)

[241] The thoughts expressed by Whealy J. in Elomar, at para.

93, about the accused's lack of remorse and the continuing

danger he presents to society are also applicable to the

appellant:

Despite these moderating features, I have to say that

Elomar has not acknowledged any responsibility for his

actions, nor has he exhibited any contrition or remorse in

relation to the serious crime for which he has been

convicted. Of course, like the others, he continues to assert

his innocence. From my perspective as the sentencing Judge,

it is important to note, however, that there is no contrition

and no acceptance of responsibility whatsoever. Importantly,

I see little prospect of rehabilitation. There is no present

indication that Elomar will ever renounce the extremist views

that fuelled his participation in this very serious

conspiracy. Unfortunately, Elomar has all the hallmarks of an

offender whose motivation is not that of financial or other

material gain, but who is driven to act from an extremist

religious conviction. The significance of this for sentencing

purposes is the acknowledgement that the community needs

protection from his criminality. The sentence must provide an

appropriate level of incapacitation so that the commensurate

degree of protection will be afforded to the community.

(Emphasis added)

[242] As Whealy J. observed, where an offender is driven by

extremist views to participate in a plot that is designed to or

is likely to result in the indiscriminate killing and injury of

innocent people, the sentencing judge must impose a sentence

that provides for "an appropriate level of incapacitation so

that the commensurate degree of protection will be afforded to

the community".

[243] Elomar received a sentence of 28 years with no chance

of parole for 21 years. The plot he engaged in was intended to

cause serious damage to property. Had it been designed to or

likely to result in the loss of innocent lives, as is the case

with the appellant, there can be little doubt that Elomar would

have received a life sentence.

[244] In assessing the danger the appellant poses to society

in this case, we have not ignored his submission that his goal

was [page391] to kill western soldiers in Afghanistan and local

troops that support them, not innocent civilians, and that his

punishment should be mitigated accordingly.

[245] We see no merit in that submission. His own writings

belie it and the trial judge concluded that he cared not who

his victims might be. The appellant advocated the death of

innocent human beings as the only way of achieving his goal of

violent Jihad. Beyond that, we reject outright the notion that

the lives of soldiers serving in Afghanistan should be somehow

treated as "less worthy" of protection when fashioning

appropriate sentences for terrorism-related offences under Part

II.1 the Criminal Code.

(iii) The sentence does not adequately deter would-be

terrorists

[246] We have already explained why terrorism is a crime like

no other. Once detected, it must be dealt with in the severest

of terms. When terrorists acting on Canadian soil are

apprehended and brought to justice, the responsibility lies

with the courts to send a clear and unmistakable message that

terrorism is reprehensible and those who choose to engage in it

here will pay a very heavy price.

[247] Our justice system is committed to the values of a

democratic society, in which openness, governmental

accountability, individual freedoms and the rule of law are

accepted as the cornerstones of a fair and just system of

criminal justice. Our sentencing and correctional philosophy

also places a premium on the notion of individual dignity and

it accepts redemption and rehabilitation as desired and

achievable goals. Regrettably, the hallmarks that define our

justice system may be seen by those who reject democracy and

individual freedom as signs of weakness. Terrorists, in

particular, may view Canada as an attractive place from which

to pursue their heinous activities. And it is up to the courts

to shut the door on that way of thinking, swiftly and surely.

[248] In R. v. Lodhi, [2006] NSWSC 691 (Aus. N.S.W.S.C.),

affd [2007] NSWCA 360 (C.A. (Crim. App.)), leave to appeal

refused [2008] HCATrans 225, Whealy J. addressed this very

concern, at para. 91:

The need for substantial sentences to reflect the

principles of general deterrence are obvious in relation to

crimes of this kind. Such crimes are hard to detect; they are

likely to be committed by members of our own community and

often by persons of prior good character and favourable

background. One has only to consider the tragedy of the

London bombings in 2005 to recognise this observation as a

sad truism. Moreover, terrorism is an increasing evil in our

world and a country like Australia, with its [page392] very

openness and trusting nature, is likely to fall easy prey to

the horrors of terrorist activities.

(Emphasis added)

[249] In R. v. Sakr (1987), 31 A. Crim. R. 444 (Aus. Ct. C.A.

(Vic.)), at p. 451, Crockett J., speaking for the Court of

Criminal Appeal of Victoria, expressed similar thoughts on the

need to stamp out terrorism quickly and decisively:

[Terrorism] is an offence that is callous in its conception,

wanton in its perpetration and, if the intent is given effect

to, ruthlessly destructive in its aftermath. It is a crime

that is relatively novel in this country, as I have already

indicated, and yet it is plain that there is a community

recognition that it is regarded with a particular repugnance

because its commission represents a profound assault upon a

stable society and the law and order that is necessary for

that society's survival. Those responsible for such

reprehensible conduct must expect to suffer condign

punishment.

If ever there were a case in which the nature of the offence

and the circumstances of its commission, called for a

deterrent penalty, then this is that case. The court is

justified in believing that the community would expect that

the punishment to be imposed should mark its intention, so

far as it might be within the power of the court to do so, to

arrest the incipient growth of terrorist-style criminal

activity in this community.

[250] We agree with the sentiments expressed by Justices

Whealy and Crockett. Terrorism must not be allowed to take root

in Canada. When it is detected, it must be dealt with in the

severest of terms.

[251] With respect, the trial judge in the instant case did

not give sufficient weight to this concern. Nor, as we have

observed, did he adequately consider the unique nature of

terrorism-related offences, the gravity of the appellant's

crimes or the continuing risk that he poses to society now, and

for the indefinite future. In the result, he imposed a sentence

that was manifestly unfit. The appellant should have been

sentenced to life imprisonment, with an order under s. 743.6(1)

of the Criminal Code requiring that he serve at least ten years

before being eligible for release on full parole.

[252] The appellant is now 31 years old. He is still a young

man. If he truly reforms and renounces his commitment to

violent Jihad by presenting clear evidence of his reformation

to the satisfaction of the parole board, he will have the

opportunity to live out a full and productive life in the

community, albeit under the scrutiny of the parole system. If

he does not reform, society will at least have the peace of

mind of knowing that he will never again be in a position to

pursue his deadly activities. [page393]

(6) Conclusion on sentence appeals

[253] We would grant the Crown's application for leave to

cross-appeal and increase the appellant's sentence on count 1

to life imprisonment. Although the trial judge entered the

conviction on count 1 on the included offence of "doing

anything with intent to cause an explosion of an explosive

substance" contrary to s. 81(1) of the Criminal Code -- a non-

terrorism-related offence -- that offence also attracts a

possible life sentence. As we have explained, the trial judge

acquitted the appellant of the terrorism-related offences

underlying counts 1 and 2 on a very narrow basis, namely, that

he was not satisfied beyond a reasonable doubt that the

appellant knew he was assisting in the U.K. fertilizer bomb

plot of the Khyam group, as alleged by the prosecution in

connection with these counts. The Crown did not appeal the

acquittal on the terrorism-related offences in counts 1 and 2.

With that in mind, we are prepared to assume that the trial

judge's decision on this issue was correct.

[254] Nonetheless, we are satisfied that the basis for the

conviction on the underlying offence in count 1 was clearly

connected to terrorist activity and thus properly triggers the

sentencing principles we have articulated. As noted by the

trial judge, at para. 4 of his reasons for sentence [[2009]

O.J. No. 4279, 2009 100210 (ON SC), 248 C.C.C. (3d) 233 (S.C.J.)], the appellant's

activity in developing and possessing an explosive device "was

directed at assisting his terrorist associates in a way that

could only result in serious injury, death and destruction to

people and property somewhere". Accordingly, even though the

appellant was acquitted of the terrorism-related offence in

count 1, on the trial judge's findings, it is accurate to

describe the underlying offence as a terrorist-related crime.

Pursuant to s. 743.6(1) of the Criminal Code, an order will go

on count 1 requiring that the appellant serve ten years before

he may be released on full parole.

[255] In light of the life sentence imposed on count 1, the

sentences to be imposed on the remaining counts take on

somewhat less significance. However, we would have regard to

the following five factors in fashioning the sentence for the

remaining counts: (1) the seriousness of the conduct underlying

the counts as a whole; (2) the nature of the individual

terrorism offences proved by the Crown; (3) the absence of

evidence of the appellant's rehabilitative prospects; (4)

Parliament's intent, reflected in s. 83.26 of the Criminal

Code, that the cumulative sentence for multiple terrorism-

related crimes will be beyond the upper range imposed for

other crimes; and (5) the overriding principle of

proportionality. Taking these factors into account, we would

impose the following [page394] consecutive sentences on each

remaining count, to be served concurrently with the life

sentence imposed on count 1:

[QL:GRAPHIC NAME="103OR3d321-6.jpg"/]

[256] The ancillary orders made by the trial judge shall

remain the same. The appellant's application for leave to

appeal against sentence is dismissed.

Conviction and sentence appeals dismissed; cross-appeal

allowed. [page395]

APPENDIX A

Relevant Provisions of the Criminal Code, R.S.C.

1985, c. C-46

PART II.1 TERRORISM

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

"terrorist activity" means

(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

causes death or serious bodily harm to a person by the use

of violence,

endangers a person's life,

causes a serious risk to the health or safety of the public

or any segment of the public,

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

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.

. . . . . [page396]

"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, and includes an association of

such entities.

(1.1) For greater certainty, the expression of a political,

religious or ideological thought, belief or opinion does not

come within paragraph (b) of the definition of "terrorist

activity" in subsection (1) unless it constitutes an act or

omission that satisfies the criteria of that paragraph.

83.03 Every one who, directly or indirectly, collects

property, provides or invites a person to provide, or makes

available property or financial or other related services

(a) intending that they be used, or knowing that they

will be used, in whole or in part, for the purpose

of facilitating or carrying out any terrorist

activity, or for the purpose of benefiting any

person who is facilitating or carrying out such an

activity, . . .

83.2 Every one who commits an indictable offence under this

or any other Act of Parliament for the benefit of, at the

direction of or in association with a terrorist group is

guilty of an indictable offence and liable to imprisonment

for life.

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.

83.19(1) Every one who knowingly facilitates a terrorist

activity is guilty of an indictable offence and liable to

imprisonment for a term not exceeding fourteen years.

83.21(1) Every person who knowingly instructs, directly or

indirectly, any person to carry out any activity for the

benefit of, at the direction of or in association with 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 life.

83.26 A sentence, other than one of life imprisonment,

imposed on a person for an offence under any of sections

83.02 to 83.04 and 83.18 to 83.23 shall be served

consecutively to [page397]

(a) any other punishment imposed on the person, other

than a sentence of life imprisonment, for an

offence arising out of the same event or series of

events; and

(b) any other sentence, other than one of life

imprisonment, to which the person is subject at the

time the sentence is imposed on the person for an

offence under any of those sections.

PART XXIII SENTENCING

718.2 A court that imposes a sentence shall also take into

consideration the following principles:

(a) a sentence should be increased or reduced to

account for any relevant aggravating or mitigating

circumstances relating to the offence or the

offender, and, without limiting the generality of

the foregoing,

(v) evidence that the offence was a terrorism

offence shall be deemed to be aggravating

circumstances;

(c) where consecutive sentences are imposed, the

combined sentence should not be unduly long or

harsh;

743.6(1) Notwithstanding subsection 120(1) of the

Corrections and Conditional Release Act, where an offender

receives, on or after November 1, 1992, a sentence of

imprisonment of two years or more, including a sentence of

imprisonment for life imposed otherwise than as a minimum

punishment, on conviction for an offence set out in Schedule

I or II to that Act that was prosecuted by way of indictment,

the court may, if satisfied, having regard to the

circumstances of the commission of the offence and the

character and circumstances of the offender, that the

expression of society's denunciation of the offence or the

objective of specific or general deterrence so requires,

order that the portion of the sentence that must be served

before the offender may be released on full parole is one

half of the sentence or ten years, whichever is less.

(1.1) Notwithstanding section 120 of the Corrections and

Conditional Release Act, where an offender receives a

sentence of imprisonment of two years or more, including a

sentence of imprisonment for life imposed otherwise than as a

minimum punishment, on conviction for a criminal organization

offence other than an offence under section 467.11, 467.12 or

467.13, the court may order that the portion of the sentence

that must be served before the offender may be released on

full parole is one half of the sentence or ten years,

whichever is less.

(1.2) Notwithstanding section 120 of the Corrections and

Conditional Release Act, where an offender receives a

sentence of imprisonment of two years or more, including a

sentence of imprisonment for life, on conviction for a

terrorism offence or an offence under section 467.11, 467.12

or 467.13, the court shall order that the portion of the

sentence that must be served before the offender may be

released on full parole is one half of the sentence or ten

years, whichever is less, unless the court is satisfied,

having regard to [page398] the circumstances of the

commission of the offence and the character and circumstances

of the offender, that the expression of society's

denunciation of the offence and the objectives of specific

and general deterrence would be adequately served by a period

of parole ineligibility determined in accordance with the

Corrections and Conditional Release Act.

(2) For greater certainty, the paramount principles which

are to guide the court under this section are denunciation

and specific or general deterrence, with rehabilitation of

the offender, in all cases, being subordinate to these

paramount principles.

Notes

Note 1: Refer to Appendix A to these reasons for the statutory

definition of "terrorist activity" and related provisions, as

well as the terrorism-related offences with which the appellant

was charged.

Note 2: See Appendix A to these reasons.

Note 3: Quotes in these reasons from the appellant s e-mails

are verbatim and have not been amended for spelling or other

errors.

Note 4: "Kuffar" is a derogatory word referring to

non-Muslims.

Note 5: A SIM card is a "Subscriber Identity Module" -- a

portable memory chip used in cellular phones that allows users

to switch from one phone to another.

Note 6: As explained by Babar: "'nigga' is a slang term used

to refer to a person, or persons if plural, whose identity would

be apparent in the context of the communication": trial judge s

reasons [2008 92005 (ON SC), [2008] O.J. No. 4244, 238 C.C.C. (3d) 114 (S.C.J.)],

para. 31.

Note 7: Section 81(1) states in part:

81(1) Every one commits an offence who

(a) does anything with intent to cause an explosion of an

explosive substance that is likely to cause serious

bodily harm or death to persons or is likely to cause

serious damage to property;

(d) makes or has in his possession or has under his care or

control any explosive substance with intent thereby

(i) to endanger life or to cause serious damage to

property, or

(ii) to enable another person to endanger life or to

cause serious damage to property.

Note 8: These cases were heard together by Pattillo J. and are

indexed as U.S. v. Nadarajah. The appeals proceeded separately,

but were heard together, in this court.

Note 9: Australia, Criminal Code Act 1995 (Cth), s. 100.1;

Britain, Terrorism Act 2000 (U.K.), 2000, c. 11, s. 1(1)(c); New

Zealand, Terrorism Suppression Act 2002 (N.Z.), 2002/34, s. 5;

South Africa, Protection of Constitutional Democracy Against

Terrorist and Related Activities Act, No. 33 of 2004, s.

1(1)(xxv)(c).

Note 10: Title 18 -- Crimes and Criminal Procedure, 18 U.S.C.

s. 2331.

Note 11: We also note that the logic of the trial judge s

finding would suggest that the entirety of Part II.1 of the

Criminal Code should be struck down. Common sense would tell us

that, if indeed there is a "chilling effect" as described by the

trial judge, it is a product of the entire package of

legislation, particularly the extensive investigative powers

given to the authorities in respect of terrorism offences. This

would appear to be the view of Professor Webb, one of the

authors relied on by the trial judge: M. Webb, "Essential

Liberty or a Little Temporary Safety? The Review of the Canadian

Anti-terrorism Act" (2005), 51 Crim. L. Q. 53.

Note 12: See para. 127 of the trial judge s reasons for

judgment, quoting from his ruling on the directed verdicts

motion.

Note 13: Section 467.14 of the Criminal Code also mandates the

imposition of consecutive sentences for committing offences

under the organized crime provisions in ss. 467.11, 467.12 and

467.13.

@1

@H