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 7 offences under the Terrorism section of the Criminal Code, which deals with terrorism and was put in place following 9/11. The accused 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 25yrs old when he was charged.

The London police and British Security Service had an ongoing investigation, “Operation Crevice” and 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".

The evidence: The Crown produced evidence that the accused had traveled to Pakistan to take part in terrorist activities. There were also many emails that the accused sent that demonstrated his desire to be part of the jihad, training in warfare, and other types of 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 terrorism-related offences.

At trial: 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 with the possibility of parole in 5 years.

At the Court of Appeal: The accused's appealed the conviction, but this 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.

At the Supreme Court the accused appealed the following:

“(1) that the provisions in Part II.1 of the Criminal Code under which he was convicted violate the Canadian Charter of Rights and Freedoms and are unconstitutional;
(2) that the provisions were misapplied or misinterpreted, resulting in an unfair trial or an unreasonable verdict; and 
(3) that the Ontario Court of Appeal erred in imposing his sentence.” (At para 1. of the case)

The Supreme Court unanimously held:

The Accused Charged Under the Criminal Code of Canada section 83.01 (Terrorism Provisions)

Taken from the Criminal Code of Canada: Terrorism Provisions in Crimianl Code

83.01 (1) The following definitions apply in this Part. “Canadian” “Canadian” means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province.

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

“listed entity” means an entity on a list established by the Governor in Council under section 83.05.

“terrorist activity” means

(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:

• (i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970,
• (ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971,
• (iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973,
• (iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979,
• (v) the offences referred to in subsection 7(2.21) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980, as amended by the Amendment to the Convention on the Physical Protection of Nuclear Material, done at Vienna on July 8, 2005 and the International Convention for the Suppression of Acts of Nuclear Terrorism, done at New York on September 14, 2005,
• (vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988,
• (vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988,
• (viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988,
• (ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and
• (x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or

(b) an act or omission, in or outside Canada,

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

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

“terrorist group” means

• (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or
• (b) a listed entity,
• 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 “terrorist activity” in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.

For greater certainty

(1.2) For greater certainty, a suicide bombing is an act that comes within paragraph (a) or (b) of the definition “terrorist activity” in subsection (1) if it satisfies the criteria of that paragraph.

Facilitation

(2) For the purposes of this Part, facilitation shall be construed in accordance with subsection 83.19(2). 2001, c. 41, ss. 4, 126; 2010, c. 19, s. 1; 2013, c. 13, s. 6.

Natural Law

St. Thomas Aquinas (Theory & Application):

1. Must be directed to the common good - CC 83.01 Terrorism - Directed at the common good for the people of the country - Terrorism kills innocent people, clearly prohibited for the common good of the people - P 55  the objective of the law - The parties agree that the objective of the terrorism provisions is to prosecute and prevent terrorism. The need to prosecute acts that support or assist terrorist activity that may never materialize into acts of terrorism flows from the great harm resulting from terrorism offences, the Crown contends. - S. 1 Oakes would allow infringement of s. 2 freedom of expression because it is for the common - Para 62  Court’s response to argument that the definitions are broad - Objective of preventing devastating harm resulting from terrorist activity - Justified it without using Oakes -

2. Must follow practical reason (reasonable steps leading to the common good - CC 83.01 definition; prohibited act - Para 82  Accused’s argument for s. 2 (freedom of expression) - Problem with definitions of terrorism and terrorist activity  vague - Definition in CC 83.01 Para 57 & 58  preliminary to the commission of the inchoate offence

3. Must be made by valid lawmaker (ruler within community, who holds this position by reason of the natural order) - In the CC, part of legislation which Aquinas liked - Judge interpreted it in the way it was intended to be interpreted (in our opinions) - Appealed all the way up to the SCC

4. Must be promulgated - Was promulgated, it’s in the CC - Well known to the public, 9/11 2001 had just happened

Conclusion - Aquinas would support this law - Passes all of the requirements for good law according to Aquinas

Positivism

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):

Different between positive morality and positive law; separation - Can have a positive law that doesn’t have to be moral - Idea that law makers are divinely placed by God and have righteous authority - Positive morality (norms)- manners, customs, club rules, international law, (English) constitutional law  positive morality is not valid law - Legal positivists are reacting against the idea of moral content required for law - Positive law-3 essential components  1. Command, 2. Issued by superiors to subordinates, and 3. backed by sanctions - Command  order or direction - Superiors to subordinates  sovereign (superior) is a governing individual or aggregate body (eg. Parliament or monarch) - Subordinate  the public/ masses under the control of the sovereign - Sanctions  repercussions/ punishment for disobeying the sovereign’s command

John Austin (Application):

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 under the main section 83.01 (terrorism) are commands - To not conduct an act or omission related to terrorist activates - All provisions of CC are commands

- Sovereign/Superior to Subordinate Sovereign 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 SCC judge reapplied them correctly by upping the sentence - Interpreted it differently; went with a deterrence effect

HLA Hart (Theory & Application):

Laws have to be recognized in order to be valid - Recognized by officials within the legal system - 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)

Separation Thesis

HLA Hart vs. Lon Fuller (Theory):

Law and morality are separate! This is so that law can be o rejects natural law theory (that law lies within reality) o the penumbra: that of ‘hazy’ boundaries  but the judges use the rule governing principles o there are primary rules and secondary rules to the separation thesis:  Primary rules: • laws impose duties to whom they apply • function as a control as well as a standard for human behaviour • require certain actions or omissions  Secondary rules: • do not impose duties • private rules of change allow individuals to change their primary rights (wills, contracts, property, marriage) • public rules of change confer public power on individuals within the legal system, and indicate how new primary rules may be introduced and how existing rules may be altered - Hart’s rule of recognition (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

Application:

Khawaja is a case that would set outside of the penumbra  no precedent for the judges  relatively new legislation  the act by Khawaja wasn’t fully carried out (ie. the terrorist attack)  re: morality and the law are separate? - terrorism is seen as ‘wrong’ - the act of terrorism is immoral, 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. Fuller’s response: you cannot separate morality and the law….you cannot recognize and make the law if you do not recognize that it’s immoral to begin with. Terrorism (the act’s described in the Act?) are immoral - people need to believe that law and morality are intertwined – if people do not believe the law is moral, then they won’t follow the law. - within the Terrorism legislation, (83.01 (1)(b)(1)(A)), “causes death or serious bodily harm to a person by the use of violence” o our society view these actions as immoral, and so the citizens of society must believe these actions to be immoral in order to follow them. Fuller (negatives of legal 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 a moral act, The actions by Khawaja weren’t actually to harm people, he was assisting in the actions of harming people. Is that immoral? Is it immoral only when it gets to the actual terrorist action? Or the actions leading up to terrorist acts? - ie. in the military, building and using detonators is seen as moral because it is a different context that they will be used. The Rex story: - laws need to be consistent – Terrorism laws within the Criminal Code are consistent – it defines and prohibits terrorist activity 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 conducive to Khawaja  Three main planks in Fuller’s argument:  1. that social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order – Terrorism legislation is grounded in recognizing that terrorist actions are immoral.  2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story). If law stops embodying and furthering these rules of inner morality, it falls apart and cannot function anymore as law.  What is there was terrorism fighting the laws of Nazi Germany? Would this been seen as immoral or moral? To agree with Hart’s theory, they would be moral to fight against the Nazi Germany’s legal rule. This would be a clash….and there would need to be a decision whether to follow the legal or moral rules.  3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws. There is inadequate guidance for people! (and remember, this is just after Nazi Germany)  - this is true, individuals need to recognize terrorism as being immoral, in order to follow the laws  4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judiciary has a duty to the law, a fidelity to the law, and so requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality. They need to interpret the law in a way that shows that they are faithful to innerly moral law. - Fuller would agree that this is a case where the judges need to interpret to find the context of the law (a case-by-case basis). in reference to the purpose of the rule, and the good the law is meant to accomplish - needs to be supported by recognition

System of Rights

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. He focuses on adjudication rather than legislation. Ie. So may be a rule in place through legislation but may not be in line with societies changing principles and need 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.

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, cannot have both and just say 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.

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. However, if they are at odds with one another it is up to the judges to weight 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.

Finally, important to note 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 impugned provision 83.01(1)(b)(i)(A) of the Criminal Code. This is clearly a rule and in Khawaja the challenge was under a claim of freedom of expression. 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 actually listeing to Khawaja’s argument 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.”

Liberty and Paternalism

John Stuart Mills (Theory):

John Stuart Mills says that people have autonomy, and questions when individual autonomy should be limited by authorities. Liberty puts a limit on authority, which leads into the tyranny of the majority.

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 an isolated – there are many different ripple effects that individuals could be affected by.

John Stuart Mills

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 as Efficiency

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 Legal Perspective

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 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 sits on the bench as well, 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.