Home / R. v. Khawaja; United States v. Nadarajah; and United States v. Sriskandarajah

R. v. Khawaja; United States v. Nadarajah; and United States v. Sriskandarajah

These companion cases deal with the constitutionality of the definition of “terrorist activity” and its operation throughout the terrorism provisions of the Criminal Code. These provisions were enacted shortly after the terrorist attacks in the United States on September 11, 2001 as part of the Anti-Terrorism Act.

These cases consider, among other things, whether the broad definition of “terrorist activity” in the Criminal Code unjustifiably infringes on the Charter of Rights and Freedoms. The BCCLA was an intervener in this case and argued that the challenged provisions violate freedom of expression because they prohibit expressive political and religious activity that does not involve violence or the threat of violence, and criminalizes an overly broad range of expressive conduct.

The BCCLA is represented by Kent Roach of the University of Toronto and Robert Centa and Michael Fenrick of Paliare Roland Rosenberg Rothstein LLP.

Read the BCCLA’s argument here.

The Supreme Court of Canada Ruling:

The Supreme Court of Canada upheld the challenged provisions. Importantly, however, it attempted to limit the ambit of the offences to only violence and threats of violence, and read the most problematic of the challenged provisions (s. 83.01(1)(b)(ii)(E)) as “confined to the realm of acts of violence and threats of violence.” The Court also left open the possibility of finding a violation of freedom of expression if the provision was utilized to criminalize non-violent expressive activity.

The Court also provided guidance on the scope of the law criminalizing participation in or contributions to the activities of a terrorist group. It considered the example of a person “who marches in a non-violent rally held by the charitable arm of a terrorist group, with the specific intentionof lending credibility to the group and thereby enhancing the group’s ability to carry out terrorist activities.” According to the Court, “although s. 83.18(1) of the Criminal Code punishes an individual who ‘participates in or contributes to … any activity of a terrorist group,’ the context makes clear that Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm. Indeed, the offence carries with it a sentence of up to ten years of imprisonment and significant stigma. This provision is meant to criminalize conduct that presents a real risk for Canadian society.”

Click here for the full SCC decision.