In a unanimous decision by the Chief Justice, the Supreme Court has today upheld the constitutionality of the anti-terrorism provisions of the Criminal Code, enacted after 9/11 as the Anti-Terrorism Act, S.C. 2001 c. 41. The case is R. v. Khawaja, 2012 SCC 69. In addition to constitutionality of the provisions in question Mr. Khawaja also raised issues relating to their application in his case and to the appropriateness of the stiff sentence (simplifying, life imprisonment and no possibility of parole for 10 years) which the Court of Appeal for Ontario had imposed on him. I will only deal with the constitutional issues in this post.
Two arguments were raised in support of the claim that the anti-terrorism provisions were unconstitutional. The first, which Mr. Khawaja had made at first instance but abandoned on appeal, but which was raised by the appellants in a companion case, Sriskandarajah v. United States of America, 2012 SCC 70, and which the Supreme Court considered in Khawaja for the sake of completeness, was that the Criminal Code‘s definitions of terrorist activity and participation in terrorist activity were overbroad. The second was that it created a chilling effect which infringed the freedoms protected by s. 2 of the Canadian Charter of Rights and Freedoms, especially freedom of expression.
The Court rejected the overbreadth claim after some clarification of the anti-terrorist provisions’ scope. The appellants in Sriskandarajah argued that they would “capture[…] conduct that does not contribute materially to the creation of a risk of terrorism, such as direct and indirect participation in legitimate, innocent and charitable activities carried out by a terrorist group” (par. 42). Criticism, or worries, along these lines had also been expressed by academics. But, the Court noted, the definition of support for terrorism includes requirements that such support be knowing and “for the purpose” of enabling or facilitating terrorism. It also took the view that “Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm” (par. 50). Worries that people taking part in peaceful protests or, say, lawyers defending terrorism suspects, could be accused are thus unwarranted. While the provision is broad, it is not disproportionate to “the objective of preventing the devastating harm that may result from terrorist activity” (par. 62).
The second argument against the constitutionality of the Criminal Code’s definition of terrorism was that defining terrorism by “a political, religious or ideological purpose,” as s. 83.01(1)(b)(i)(A) of the Code does, aims at restricting citizens’ freedoms of expression, religion, and association or will have a chilling effect on the exercise of these freedoms. The Court focuses on freedom of expression. It points out that violence, however expressive, is not covered by the Charter‘s guarantee of freedom of expression. Nor, it says, are threats of violence. The Criminal Code‘s definition of terrorism mostly captures acts or threats of violence, and to that extent they are unquestionably constitutional. The only potentially problematic aspect of the definition is that it includes disruptions of essential services and systems, except as a result of protest not intended to cause harm to life, health, or property. At least for the most part, says the Court, this too concerns acts or threats of violence; if a future case reveals that this provision can capture non-violent expressive activity, this conclusion can be revised on its facts. As for chilling effect, the Court concludes that it is not a justified worry. There is some dispute over how chilling effect can be established―are logical inferences enough, or does there have to be evidence? The Court says that an inference may be enough in some cases―but not here. For one thing, a finding of chilling effect has to be based on a correct understanding of the impugned provision. And once it is understood that the definition of terrorism only encompasses acts or threats of violence, there is no ground to fear that it will be applied to non-violent expression. For another, if it appears that law enforcement uses the provision for biased profiling activities, then it is these, rather than the law itself, which will need to be challenged.
Sounds sensible to me.