Course:Law3020/2014WT1/Group K

Case Overview
R v Khawaja was heard in the Supreme Court of Canada in 2012. R v Khawaja

Facts
The accused was charged with seven offences under the Terrorism section (s. 83.01) of the Criminal Code, which deals with terrorism and was put in place following 9/11. Khawaja was born in Ottawa and spent some years living in other countries (predominantly Muslim ones) before coming back to Canada with his family at age 17. He was 25 yrs old when he was arrested and charged.

The London police and British Security Service had an ongoing investigation termed “Operation Crevice” which determined that the accused, while in London, met with Omar Khyam, the leader of a known terrorist group. The discussion was around a remote explosive arming device that the accused was building for Khyam to use, which he referred to as the "hifidigimonster".

Evidence
The Crown produced evidence that the accused had travelled to Pakistan to take part in terrorist activities. There were also many emails that the accused sent which demonstrated his desire to be part of the jihad, training in warfare, and other types of terrorism related violence. The emails expressed devotion and honour to the terrorists of 9/11 as well as to Osama Bin Laden. In addition, a US citizen who was convicted of terrorist activity, ‘Babar’, testified against the accused and told of how the accused and Khymer had trained together in a camp in Pakistan on how to use explosive devices. The accused allowed Khymer and others in the group to stay at his parent’s home in Pakistan. There was also money wired money to them in the UK, after the accused recruited a young woman to assist with the money transfers. The accused offered to smuggle the remote explosive arming device into the UK for the terrorist group to use it there.

The accused was arrested by the RCMP and charged under the Criminal Code with offences under Section 83.01. Khawaja was the first to be charged under the new Terrorism provisions. He claimed the provisions were unconstitutional because they were over-broad and vague.

Trial History
At trial the accused was convicted on counts 3 through 7. The accused was sentenced to 10 and a half years with no credit for time served and with the possibility of parole in 5 years.

At the Court of Appeal, Khawaja appealed the conviction, but the appeal was dismissed. The Crown's appeal, however, regarding the sentencing was allowed, and the Court of Appeal sentenced the accused to life in prison with no possibility of parole for 10 years.

Issues Raised at Supreme Court of Canada


A.    Constitutionality of the provisions;

1.     Does s. 83.18 of the Criminal Code violate s. 7 of the Charter?

2.     Does the law, specifically the motive clause, infringe s. 2 of the Charter?

3.     Conclusion on the constitutionality of the law;

B.    Application of the provisions;

1.     Did the deletion and subsequent re-insertion of the motive clause make the trial and convictions unfair?

2.     Does the armed conflict exception apply?

3.     Were the verdicts unreasonable?

C.    Did the Court of Appeal err in overturning the sentence imposed by the trial judge and substituting a term of life imprisonment?

Holdings at Supreme Court of Canada
A s. 83.18 of the Criminal Code does not violate s. 2 nor s. 7 of the Charter and therefore is constitutional.

B The Supreme Court of Canada found that Khawaja did not suffer any prejudice due to the re-insertion of the motive clause and that the armed conflict exception did not apply to his circumstances. Much of the argument presented for unreasonable verdicts was based on the armed conflict exception, and has been deemed to not apply.

C The Supreme Court of Canada held that to ensure a “clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it [in Canada] will pay a very heavy price”, the sentence was reasonable.

Criminal Code of Canada - Terrorism Provisions
To view the provisions Khawaja was charged under, please see Criminal Code of Canada: Terrorism Provisions in Criminal Code

St. Thomas Aquinas (Theory):


St. Thomas Aquinas Theory describes 4 elements needed for a valid law. Without these elements, a law will be invalid.

1. Must be directed to the Common Good

Aquinas was an essentialist who believed that there were some recognized goods essential to all humans. Some of these goods include self-preservation, procreation, living in society and exercising spiritual as well as intellectual capacities. Aquinas refers to the "common good" which means the good of the community as opposed to the good of a specific individual or what individuals want, even if they are the majority. Order imposed by law is a necessary element of the common good and facilitates stability as well as happiness.

2. Must follow practical reason

By this Aquinas meant reasonable steps leading to the common good.

Aquinas viewed laws as practical reason directed to the common good. They are steps that we must take to reach the end of the common good. The Sovereign's command must be in accord with some rule of reason in order to be law. God gives us the capacity to devise these steps.

3. Made by a valid lawmaker

Created by a ruler within the community, who holds this position by reason of the natural order.

A valid lawmaker is required and they do not have to carry out the will or wishes of the community. Aquinas believed in a naturally ordered relationship where some naturally rule and others are naturally ruled. This was not a democracy, as the natural leaders know what is in the common good and what will achieve universal happiness. They are permitted to threaten, coerce and punish the ruled in order to pursue this goal.

4. Must be promulgated

It is a condition of justice that laws be written down and known to all because the people cannot obey unknown laws. The purpose of law is to compel obedience which will result in the common good. Obedience is impossible where the law is not known which makes promulgation an essential element in this theory.

St. Thomas Aquinas (Application):
Applying these 4 elements to the Terrorism provision in the Criminal Code.

1. Must be directed to the Common Good

The Criminal Code provision in this case is 83.01 which deals with terrorism. It is directed at the common good for the people of the country, because terrorism is aimed at killing innocent people. This is clearly prohibited when considering the common good of society. The objective of the terrorism provision is to prosecute and prevent terrorism. The need to prosecute acts that support or assist terrorist activity flows from the great harm that could result from terrorism offences, even if the actual offence never materializes. The objective of preventing devastating harm would justify any potential breach of Charter s. 2 (Freedom of Expression) under Charter s. 1 with the Oakes test.

2. Must follow practical reason

The offence of terrorism does follow reasonable steps leading to the common good by prohibiting these types of acts and making them offences. Having acts of terrorism and acts closely related to terrorist activities as offences will lead to the common good because it is in society's interest to not allow violent attempts on the lives of others. Similar to an offence like murder, terrorism being prohibited is a clear example of an offence that is there to protect the people and serve the common good.

3. Must be made by a valid lawmaker

The terrorism provision is part of the Criminal Code, which was enacted by the Government of Canada's legislature. In Aquinas' view, this would satisfy the requirement that it was made by a valid lawmaker as the legislature is the body formed to naturally rule. The Judge in this case interpreted the terrorism provision the way the legislature had intended for it to be interpreted. It was also appealed right up the Supreme Court of Canada, which means it was interpreted and decided by the highest court in the country. The Supreme Court of Canada is also a valid lawmaker as they provide us with common law precedent which must be followed by any inferior courts when they adjudicate on situations that are analogous.

4. Must be promulgated

The law in this case was promulgated and known to all. It is included in the Criminal Code which is accessible to all. It is well known by the public to be an offence, especially as it was enacted subsequent to the 9/11 attacks in 2001. At this time, the offence of terrorism came to the forefront of current events and has remained there due to ongoing concerns of potential attacks. Khawaja was charged in 2006, just 5 years after these attacks. Terrorism was a known offence and a major concern for the country.

Conclusion

St. Thomas Aquinas would support this law as valid. It passes all 4 requirements he set out for a valid law.

Overview:
Positivism: A reaction to the teleological nature of natural law.

Teleological: All things have a proper end or function that can only be understood with that in mind. Law’s end or function is the rational pursuit of the common good (morality). Separation between the law and morality; wants to separate the 2 concepts.



John Austin (Theory):
John Austin believes the difference between positive morality and positive law is separation: Can have a positive law that doesn't have to be moral. The idea that law makers are divinely placed by God and have righteous authority. Positive morality (norms) include manners, customs, club rules, international law, and (English) constitutional law. However, positive morality is not valid law.

Legal positivists are reacting against the idea of moral content required for law. Positive law has three essential components: 1) Command, 2) Issued by Superiors to Subordinates, and; 3) Backed by Sanctions.


 * Command refers to order or direction.
 * Superiors to subordinates is in relation to the sovereign (superior)which is a governing individual or aggregate body (eg. Parliament or monarch). While a subordinate is the public/masses under the control of the sovereign.
 * Sanctions are repercussions/punishment for disobeying the sovereign’s command.

John Austin (Application):
Khawaja was charged under CC 83.01(1)(b)(i)(A)-(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 - 83(1)(a), 81(1)(d), 83.2, 83.18, 83.21(1), 83.03(a), 83.19.

Command: All provisions of CC are commands, this includes the main section 83.01 (Terrorism). To not conduct an act or omission related to terrorist activates.

Sovereign/Superior to Subordinate: The Sovereign in this case is the parliament who passes the legislation. Constitution could be considered positive morality under Austin’s view, whereas in Canada the Constitution is positive law (which does have sanctions if you include the Charter). Constitution as the sovereign but cannot pass legislature on its own; parliament does this for the sovereign and in that can be treated like the sovereign.

Sanctions: There are sanctions included in the provision. They were applied improperly, and the Supreme Court of Canada reapplied them correctly by increasing the sentence. The Supreme Court of Canada interpreted it differently and went with the deterrence effect approach.

HLA Hart (Theory & Application):
According to HLA Hart, laws have to be recognized in order to be valid. They must be recognized by officials within the legal system and must be consistently applied and they have to believe that there are obligations to apply them. Disobedience may be warranted where laws immoral (ex. Marijuana). In this case, the prohibitions against terrorism are recognized as they are in the Criminal Code. They are consistently applied and cannot be considered to be immoral because they deal with the killing of innocent people.

HLA Hart vs. Lon Fuller (Theory):
HLA Hart

Hart says that law and morality are separate. This theory rejects natural law theory whic is that law lies within reality.

The main argument of the separation thesis includes that of the penumbra: the idea of ‘hazy’ boundaries and the hard cases are outside of these boundaries. When there is a conflict between law and morality, then we have to weigh what is more important for us to follow. In certain circumstances, we are justified for not following the law, such as when morality is more important. Hart says, though, that we 'ought to' always follow the law.

According to Hart, judges use the rule governing principles to solve hard cases. Hart believes that there is a settled core of meaning and when a case falls outside of this core, and therefore cannot be explained based on the previous cases within the core, this is the 'penumbra'. When these hard cases fall in the penumbra, it's up to the judge to use the underlying themes within the law to decide each hard case. These themes, or 'rule governed practice', are the principles of justice within our society. As an example, the Charter is seen as a principle of justice.



Hart's rule of recognition (ie. recognizing the law) claims that law's authority is grounded on the acceptance of law as valid, and lawmaker's recognition of themselves as obligated to enforce and obey the law. Basically he believes that a law is a law because it is recognized by those who it applies to and those who make them. There are primary rules and secondary rules to the separation thesis.

Lon Fuller

Fuller, in response to Hart, claims that you cannot separate law and morality. He says that there is no guidance to people in deciding whether to follow the law or morality if we were to follow Hart's theory. He believes that the social acceptance of laws is grounded in the morality of them, that the laws do have morality within them, and that Hart's separation thesis doesn't provide an adequate explanation for how people would obey the law if it were not connected to morality. He believes that law needs to be moral in order for individuals to follow it. When responding to Hart's theory on the role of judges, Fuller disagrees, and instead states that the judges have a fidelity to the law and that the law must be interpreted so as to fulfill it's purpose which includes morality.



Application:
Khawaja is a case that would seen as outside of the 'penumbra' as seen by Hart. There is no precedent for the judges and the terrorism provision within the Criminal Code is relatively new. Hart would say that the morality aspect of terrorism laws is not relevant, but the law is necessary for the prohibition of the acts of terrorism. And because it is recognized as a law, then those who it applies to (Canadian citizens) will follow it. According to Hart, there are moral rules and legal rules, and if there is a clash, the obligations must be weighed (case-by-case). In Khawaja, there is no clash, because the laws are moral. Hart’s separation thesis would not easily apply to this case – this case has morals and the law significantly intertwined.

Fuller’s argument that morality and law are inseparable is more conducive to Khawaja. The terrorism provisions are directly related to what Canadians believe are immoral actions. Fuller’s response to this would be that you cannot separate morality and the law and you cannot recognize and make the law if you do not recognize that it’s immoral to begin with. Terrorism actions are immoral and people need to believe that law and morality are intertwined; if people do not believe the law is connected to morality, then they won’t follow the law. The terrorism provisions of the Criminal Code, specifically s. 83.01 (1)(b)(1)(A), say that terrorism “causes death or serious bodily harm to a person by the use of violence”. Our society views these actions as immoral, and so the citizens of society must believe these actions to be immoral in order to follow them. Fuller also says that positivism influences people to make law for laws sake, without recognizing morality (ie. if terrorism was seen as moral, then if the laws were still in place, the laws would only be there for laws sake). In application to our case, Khawaja is a response to recent situations in our world: if people believe that terrorism is an immoral act, the actions by Khawaja were immoral because they were aimed at assisting others to be able to harm people. There are other instances when building and using detonators is seen as moral, but these are not seen to fall within the illegal actions described in the Criminal Code. For example, in the military, building and using detonators is seen as moral because it is a different context that they will be used. Law and morality, using Khawaja as an example, cannot be separated: the actions which lead to harm of others are immoral and therefore illegal.

Ronald Dworkin (Theory):
Dworkin on Positivism: Dworkin’s theory is a direct counterpoint to positivism. Rather than Hart’s argument that law is a system built solely on rules, Dworkin argues that it contains more such as principles and policies. If a case is not covered by a rule it is still covered by legally binding principles that judges follow. He focuses on adjudication rather than legislation. What may be a rule in place through legislation may not be in line with societies changing principles and needs to be reexamined and changed via judge’s decision. It is up to the judges to weigh societies interests in determining what is important when making a decision of whether to follow the rule or principle.



Dworkin's distinctions: Rule vs. Principle/Policy:
Rule: A rule is applicable in an all or nothing fashion. It is either valid or invalid.
 * Example: “3 strikes and you’re out” in baseball.
 * Also of note, exceptions to rules need to actually be included within the rules.
 * When rules intersect one must be held invalid there cannot be both. One is more important that the other.

Principle: Considerations based on justice and fairness, the support specific rights and duties.
 * Since it is based on justice and fairness there is an element of morality.
 * Principles developed by professions and public over time.
 * Principles are a very important part of the law.

Policy: Social goals pursued for the benefit of some segment of the population.
 * Decisions about which goals to pursue and which benefits to provide should be left to legislators.
 * Generally Dworkin includes the term policy within the term principle.

When rules and principles intersect judges consider both. Rules and principles can coincide with one another if they play the same role. If they are, however, at odds with one another it is up to the judges to weigh the rule against the principle. Rules often need to change with the changing of societies principles.

Discretion:
Judges have discretion when deciding case to an extent. However they are within the confines of the principles. Judges can change existing rule of law when principles change over time and new principles have been given more weight. When judges use this discretion to make decisions it is of utmost importance for the judge to take the communities/societies interests into consideration rather than their own subjective attitudes. Only when doing this are they ruling with integrity.

Law as integrity: one common voice, law comes from communal rights and duties. It is important for judges to acknowledge and rule with this in mind. The law can be seen as like a chain novel, with judges picking up the story where other judges have left off, and writing their 'chapter' to continue and contribute to the 'big picture'.

Finally, important to note that when judges use discretion when making decisions they are not creating new law but rather changing it by finding the underlying rights and duties.

Application:
The provision 83.01(1)(b)(i)(A) of the Criminal Code was used to charge Khawaja. This is clearly a rule and in Khawaja one of the challenges brought forward to the Supreme Court was under a claim of freedom of expression. While this provision would potentially infringe on freedom of expression, there are essentially no principles that would support this argument based on the accused’s actions.

This is a case where the rule in question goes along with societies underlying principles against terrorism and harming the innocent. The principle and rule are aimed toward the same end and not in conflict. What is actually at odds with each other is a principle (freedom of expression/speech) and the underlying societal principle against terrorism. Which is weighted more? It a new case, and a hard case because there was very limited precedent but it was not completely “hard” because it was clear what societies principles were regarding terrorism. Judges would appeal to principles, this is their obligation.

In this case because the rule and principles coincided it was not extremely onerous for the judges to weight both and reach a conclusion. The court did listen to Khawaja’s argument, which was an example of the fairness of fundamental justice. They weighted Khawaja’s principles vs. the principles of society when reaching their conclusion and gave proper discretion to Khawaja’s argument. By taking every argument into consideration and looking at society’s underlying principle (that against terrorism and harming another person) the judges were ruling with integrity, this would uphold Dworkin’s theory of “law as integrity.” Ultimately, the judges believed that the goal of deterring terrorism and preventing terrorist act was more important and their ruling against Khawaja reflects this.

John Stuart Mills (Theory):
John Stuart Mills says that people have autonomy, and questions when individual autonomy should be limited by authorities. When should the law interfere with what individuals decide to do? Authority can be beneficial, but can also lead into the tyranny of the majority. He believed that autonomy was of the utmost importance and interference with autonomy should only be justified by way of the harm principle.

It is important to note, though, that Mills only regarded those worthy of their own autonomy to be those who have 'mature faculties'. This means that they must have the capacity to be autonomous. Mills says that it is when individuals are children that they can be encouraged to follow the correct path, but then by the time they are adults, their decisions are their decisions and society should not interfere (ie. impose punishment or attempt to rehabilitate those who make bad decisions, etc.).

The Harm Principle: That harms are worthy of justification to limit the autonomy of individuals. Because of the protection provided by society, we all have an obligation not to harm others within our society. Individuals are NOT isolated – there are many different ripple effects that individuals could be affected by.



Application:
John Stuart Mills would have seen that, as a child, Khawaja should have been guided by society to make good decisions, however, he wasn’t guided, and so now it’s too late.

Khawaja definitely, according to Mills, had his mature faculties, so the right of liberty applied to him. Mills would also say that his decisions would be on Khawaja, essentially it’s his own fault (Khawaja’s decisions to assist terrorism).

Mills would also say that there is no tyranny of majority here, because the terrorism legislation is supported and backed by the individuals who elected the MP’s who reform and add to the criminal code.

In Khawaja, he attempted to use the Charter to keep the government in check, but was unable to. The ‘claws of majority’ won because the court said that the overall well-being of society is more important than an individual’s freedoms.

Paternalism: - Paternalism says that interference with a person’s autonomy is justified to protect that person. In Khawaja, paternalism is not present, because the legislation is not to protect the individual completing the act. The anti-terrorism legislation is protecting the rest of society from that individual’s potentially harmful acts.

Law and Economics (Theory):
The focus of this theory is to maximise social wealth through efficiency. Social wealth is not necessarily a monetary measure. All measurable satisfactions are included in ‘social wealth’ in the context of the law and economics theory. The law and economics theory is based on efficiency, which is the premise that human beings will participate in the market as rational, free actors and will make decisions based solely on their best interest. From a law and economics point of view, a person’s best interest will be to gain as much value or social wealth as they can from a transaction, and only participate in transactions that will help them gain more social wealth.

Where Legal Positivists say we can evaluate the laws against morality, and here morality is replaced with efficiency.

Pareto-superior transactions are those in which there will be at least one winner, and no losers. A Pareto-optimal state is one in which no more Pareto-superior transactions can occur. Free market transactions by rational persons will always be Pareto-superior because the two parties would not make a transaction in which they would lose social wealth.

Third parties may be effected by transactions they are not involved in, and the cost to them must also be considered by this theory. The parties conducting the transaction need to invest in diminishing externalities or they simply need to be better off so that the can compensate the third parties for the cost to them. The Kaldor-Hicks principle is that the parties conducting the transaction must gain enough value that they can fully compensate the losers, or can invest enough to mitigate eradicate the loss by the third parties.



Application:
The theory requires the actors participating in society and transactions to be rational. In this case, Khawaja is not a rational actor because he did not act to maximise the social wealth. The lack of rationality is based in the risk of losing, and the loss he would subsequently experience is he was caught.

The inclusion of terrorism as a criminal offence is worth the cost to society. The cost of enforcing the criminal law system is much less than the cost to society would be if any terrorist bombing succeeded. It is more efficient for the criminal system to try and stop a terrorist bombing before it occurs than for the cost of stopping a bombing to be put toward compensating victims.

Stopping the terrorist bombing will maximise social wealth because of the high interest that society has in this area. Wealth will be maximised for society if lives are saved and if people aren’t fearful. The cost to maintaining terrorism as a criminal offence is less than the social wealth maximised.

Feminist Theory:
Feminism is based upon a cluster of views - not a single school of thought. Feminist theory focusses on specific, concrete, and lived experiences of women. There are various different theories regarding feminism and the law, but they all have a common core. This includes an analysis of patriarchy as a starting point. Patriarchy is the system in which the world works and has worked for many of years. It is the systematic domination of women by men and it's invisible and this perpetuates it (people cannot change what they do not see!). Patriachy presents itself as being a natural embodiment of society, however, is constructed by us and maintained socially as our way of being.

How does feminism and feminist theories relate to law?! It challenges traditional legal values and determines that they are falsehoods. Feminism also looks at the neutrality of law and how the rule of law affects women. Feminist theory challenges the idea that law is neutral, law is separate from politics, and law is separate from morality.



The various theories of feminism bring forth different ideas under the same umbrella that aims to address the discrimination of women.
 * Liberal feminism: blocks can be removed to create equality, but the informal discrimination must also be recognized in order to acknowledge women's oppression.
 * Radical feminism: we need to change everything in order to change the system of discrimination. Children need to be socialized differently from the start.
 * Marxist feminism: this claims that the oppression of women is a necessary function of the capitalist system.
 * Postmodern feminism: Women are different and this should be embraced by society!
 * Relational feminism: Women's experiences are based on their relationships. These are the reality of women's experiences and need to be addressed for changes to occur.

Application:
In applying this theory to R v Khawaja:

The legal system is created by a system of ideas that perpetuate the patriarchy. The anti-terrorism provisions within the Criminal Code were made within this patriarchal system where there is power by men over women, and the power relationship can be seen as transferred to other oppressed groups as well. When the provisions were created, if the lawmakers has taken into account the experiences and lived lives of individuals, including women and other oppressed groups, the law could have potentially looked very different.

Most women are in a position of disempowerment and the same can be said for individuals in different oppressed groups. Khawaja is a young man as part of a minority group in Canada and belongs to a religion (Muslim) that is contrary to the Christianity that Canadian society and Canadian laws are largely based upon. The power is in the hands of men in Canada, and they are creating the power that they have over other groups. The anti-terrorm provisions in the Code reflect the power imbalance between the group in power and the oppressed.

In addition, this case was decided by the Supreme Court of Canada led by (a female) Chief Justice McLachlin. It is important to note that McLachlin is a good example of classic liberal feminism. She would agree that by taking away the blocks there is no reason why women cannot be equal. Justice L'Heureux Dube, however, who previously sat on the bench, can be seen as a liberal feminist, but in her decisions she implies that the relationships and experiences of women are important too, and the removal of the blocks is important but not the end of the story for creating equality.